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Unofficial Opinion 2012-2

Unofficial Opinion 2012-2

June 14, 2012
To: 

Judge,

Juvenile Court, Augusta Judicial Circuit

 

Re: 

The Federal Juvenile Delinquency Act provides authority for Columbia County to assume jurisdiction over matters of juvenile delinquency occurring on the Fort Gordon military installation, except under those circumstances where the federal authority makes a certification under 18 U.S.C. § 5032 that the state system cannot assume such jurisdiction.

You have requested my opinion on whether an agreement or partnership between the Fort Gordon military installation and the Columbia County juvenile court system, whereby the county would assert jurisdiction over matters of juvenile delinquency that occur upon the military base, would be permissible given applicable laws regarding exclusivity of federal enclaves and cession of state jurisdiction over military bases.  You specifically ask whether 1994 Op. Att’y Gen. U94‑10, which concluded that the Liberty County juvenile court system could not assume jurisdiction over juvenile delinquency matters occurring on the Fort Stewart military reservation, is applicable so as to prevent such a partnership.  I have concluded that, under the circumstances described in your letter, the proposed agreement would not violate the cession laws.

You state that Fort Gordon personnel have requested assistance from the Columbia County juvenile court system (“Columbia County”) to manage matters of juvenile delinquency that occur on the grounds of Fort Gordon military installation (“Fort Gordon”).  Fort Gordon does not have the resources or facilities to handle the juveniles, and juvenile matters that are handled through the federal district court system sometimes require transfers of the youth to a holding facility in Jacksonville, Florida. You have informed us that Columbia County, on the other hand, “boasts a number of programs designed to better equip youth to deal with and move forward from problematic behavior,” including counseling programs, truancy reduction programs, life skill workshops, and a tutoring program.  Additionally, you state that Columbia County partners with Georgia Health Sciences University (formerly the Medical College of Georgia) for youth treatment programs.  Further, there are two public schools, with a third school planned, located upon the property of Fort Gordon which juveniles who live at Fort Gordon attend.  Both Columbia County and Fort Gordon desire to reach an agreement under which Columbia County would assume jurisdiction over juvenile delinquency matters of non-military personnel that occur on Fort Gordon property.

In order to determine whether Columbia County can legally assert jurisdiction over juvenile delinquency matters at Fort Gordon, the inquiry must begin by looking to the United States Constitution, which grants Congress the power

to exercise exclusive Legislation in all Cases whatsoever . . .  over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings.

U.S. Const. art. I, § 8, cl. 17.  Jurisdiction of land within the borders of a state acquired by the Federal Government for any of the purposes listed in Article I, Section 8, Clause 17 can be exclusively federal or concurrent with the state, depending on how acquired and whether the state has ceded jurisdiction through legislative enactment.  See Kleppe v. New Mexico, 426 U.S. 529, 542 (1976) (“Congress may acquire derivative legislative power from a State . . . by consensual acquisition of land, or by nonconsensual acquisition followed by the State’s subsequent cession of legislative authority over the land.”); Paul v. United States, 371 U.S. 245, 264 (1963) (“Thus if the United States acquires with the ‘consent’ of the state legislature land within the borders of that State by purchase or condemnation for any of the purposes mentioned in Art. I, § 8, cl. 17, or if the land is acquired without such consent and later the State gives its ‘consent,’ the jurisdiction of the Federal Government becomes ‘exclusive.’”).   Additionally, a state may reserve certain jurisdiction over the lands within the federal enclave, so long as it is “consistent with federal use.”  Paul, 371 U.S. at 265.

In accordance with Article I, Section 8, Clause 17, the State of Georgia has given its consent “to the acquisition by the United States, by purchase, condemnation or otherwise, of any lands in this state which have been or may be acquired for sites for customs houses, courthouses, post offices, or for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings.”  O.C.G.A. § 50‑2‑22.  Further, pursuant to O.C.G.A. § 50‑2‑23, the State of Georgia has ceded exclusive jurisdiction over any lands acquired by the United States as provided in O.C.G.A. § 50‑2‑22, subject to certain specified exceptions, including “civil and criminal process of the courts of this state.”  O.C.G.A. § 50‑2‑23. [1]  Additionally, O.C.G.A. § 50‑2‑23 provides that “[t]he state retains its civil and criminal jurisdiction over persons and citizens in the ceded territory, as over other persons and citizens in this state, except as to any ceded territory owned by the United States and used by the Department of Defense . . . .”  The Georgia Court of Appeals has interpreted this Code section to be an “offer to cede criminal jurisdiction to the United States, which, to become effective, must be accepted by the latter entity.”  Dobbins v. State, 114 Ga. App. at 403-04.  The Georgia Cession of Jurisdiction Act, now O.C.G.A. §§ 50‑2‑22 to ‑24, has been deemed a “complete and general cession of jurisdiction to the Federal Government over all lands held by the United States ‘for purposes of government.’” Bowen v. United States, 134 F.2d 845, 846 (5th Cir.), cert. denied, 319 U.S. 764 (1943).

Indeed, as 1994 Op. Att’y Gen. U94-10 correctly states, “[t]he United States Supreme Court has made it ‘clear that the grant of “exclusive” legislative power to Congress over enclaves that meet the requirement of Art. I, § VIII, cl. XVII, by its own weight, bars state regulation without specific congressional action.’ Paul v. United States, [371 U.S.] at 263.”  Id. at 85.  However, in 1974, Congress enacted what is commonly referred to as the Federal Juvenile Delinquency Act.  18 U.S.C. §§ 5031‑5042.  The Federal Juvenile Delinquency Act (“FJDA”) provides in pertinent part:

A juvenile alleged to have committed an act of juvenile delinquency . . . shall not be proceeded against in any court of the United States unless the Attorney General, after investigation, certifies to the appropriate district court of the United States that (1) the juvenile court or other appropriate court of a State does not have jurisdiction or refuses to assume jurisdiction over said juvenile with respect to such alleged act of juvenile delinquency, or (2) the State does not have available programs and services adequate for the needs of juveniles, or (3) the offense charged is a crime of violence that is a felony or an offense described in section 401 of the Controlled Substances Act (21 U.S.C. 841), . . . and that there is a substantial Federal interest in the case or the offense to warrant the exercise of Federal jurisdiction.

If the Attorney General does not so certify, such juvenile shall be surrendered to the appropriate legal authorities of such State . . . .

18 U.S.C. § 5032.  The Eleventh Circuit has held that the certification requirement of 18 U.S.C. § 5032 is a jurisdictional requirement, absent which the federal court has no jurisdiction over a juvenile.  See United States v. Wellington, 102 F.3d 499 (11th Cir. 1996).  Although Wellington did not involve acts occurring upon a military base, the court made clear that absent the required certification “such juvenile shall be surrendered to the appropriate legal authorities of such State.”  Id. at 503.

The Seventh Circuit discussed the legislative history and policy behind the enactment of the Federal Juvenile Delinquency Act in United States v. Sechrist, 640 F.2d 81 (7th Cir. 1981):

The certification procedure in the Federal Juvenile Delinquency Act encompasses a recognition of the general policy of federal abstention.  The official summary and analysis of the 1974 amendments to the Act stated: The federal courts and federal correctional system have never been properly equipped to handle large numbers of juveniles with the result that federal juvenile delinquents are frequently transferred away from their home communities for treatment.  By deferring jurisdiction to state courts, the harmful effects of this dislocation would be reduced.  120 Cong.Rec. 25162 (1974).

640 F.2d at 84.[2]  The Sechrist court continued by stating that the certification procedure provided for in the Act was a measure designed for federal courts to assume jurisdiction of juvenile matters only by default in two distinct situations: either where jurisdiction does not exist concurrently anywhere else, or where the particular state in which the offense or incident occurs does not have programs and services adequate to handle the needs of juveniles.  “The certification procedure was designed to ensure that only where jurisdiction existed nowhere but in the federal courts or where the particular state did not have available programs and services adequate for the needs of juveniles were the federal courts to intrude in a juvenile case.”  Id.

Although Georgia courts have not addressed the specific issue at hand, this policy of federal abstention has been recognized by multiple jurisdictions that have considered whether a state or local court system can assume jurisdiction over matters of juvenile delinquency occurring on military installations within the state over which the state has ceded partial or exclusive jurisdiction.  For example, in State ex rel. D.B.S., 349 A.2d 105 (N.J. Super. Ct. App. Div. 1975), cert. denied, 358 A.2d 191 (N.J. 1976), a juvenile who was charged with acts of juvenile delinquency committed on Fort Dix property and adjudicated a delinquent by the New Jersey juvenile court appealed his sentence alleging lack of jurisdiction.  The juvenile argued that because exclusive jurisdiction over Fort Dix had been ceded to the United States, the New Jersey courts were without jurisdiction to try crimes committed within that federal enclave.  Id. at 106‑07.  The New Jersey court rejected this argument based on its analysis of the congressional intent behind the FJDA.  “Congress intended to subject a juvenile to the jurisdiction of a state court if that state has jurisdiction over the juvenile, will accept jurisdiction, and has available programs and services adequate for the needs of the juvenile.”  Id. at 107.  The court also discussed the significance of the juvenile having received his education from the public school system in New Jersey, and the fact that the statutory scheme of the juvenile delinquency laws are designed to be protective and rehabilitative, permitting the State to act as “parens patriae.”  Id.

Accordingly, not only would it be inconsistent to hold that a juvenile who benefits from the State’s educational system and community life cannot also benefit from its juvenile laws, but it is our view that the State has an obligation to protect and rehabilitate a juvenile such as D.B.S. who, although housed on land ceded to the Federal Government, is a member of the social community of New Jersey. . . .  So long as there is no interference with the jurisdiction asserted by the Federal Government, the State’s jurisdiction continues.

Id. at 107-108.

In M.R.S. v. State, 745 So. 2d 1139 (Fla. Dist. Ct. App. 1999), the District Court of Appeal for Florida held that jurisdiction of juvenile offenses occurring on Eglin Air Force Base was properly transferred to the state court system.  “ʽSo long as there is no interference with the jurisdiction asserted by the Federal Government, the State’s jurisdiction continues.’” 745 So. 2d at 1139 (quoting State ex rel. D.B.S., 349 A.2d at 105).[3]

In the case of In re Charles B., 765 N.Y.S.2d 191 (N.Y. Fam. Ct. 2003), the New York Family Court addressed the issue of whether its state courts could assume jurisdiction over juvenile delinquency matters which occurred on the West Point military reservation when the state had ceded the property to the Federal Government for military purposes under state statutory law.  In this case, the juvenile was the child of military personnel, charged with committing various criminal offenses on West Point property.  765 N.Y.S.2d at 193.  A petition for delinquency was filed in the state court and the juvenile defended on the basis of lack of subject matter jurisdiction under the cession rules.  Id.  The court disagreed, distinguishing juvenile delinquency proceedings from criminal proceedings: “The Family Court is not a criminal court, but rather a civil court.  As such, matters brought under article 3 are not considered criminal in nature but rather serve the purpose of rehabilitating a youth without attaching the stigma of a criminal charge or conviction.”  Id. at 193-94.  The court went on to state:

In fact, in addition to traditional issues of child custody and child protection cases, there has been a long-standing precedent of federal deference to state jurisdiction in matters pertaining to juveniles.  This policy was codified by Congress in 18 USC § 5032. . . .  Even in instances where the juvenile has violated a federal statute (which is not the case here), Congress has expressed an intent to defer to state courts with regard to juveniles (18 USC § 5032).

Id. at 194.  The court then reviewed the analysis in State ex rel. D.B.S., supra, and M.R.S. v. State, supra, and determined that those decisions were persuasive, concluding that the purposes of New York’s Family Court Act would be best served by allowing the state to assert jurisdiction over matters of juvenile delinquency in light of the available programs to serve those needs.  Id. at 380.  See In re Terry Y. v. Benny Y., 101 Cal. App. 3d 178, 183 (Cal. Ct. App. 1980) (though involving a child welfare matter rather than juvenile delinquency, court held that county’s exercise of jurisdiction over child living on military base did not violate Article I, Section 8, Clause 17 of the United States Constitution, stating “[t]he [county] court’s exercise of its jurisdiction, invited by the federal authorities in command at Fort Ord, in no way conflicted with the federal sovereignty but was an integrated part of the army’s efforts to alleviate the problems of child welfare on the base”).

One of the few cases in which the stated congressional policy of federal abstention under the FJDA was held not to override the state’s cession of jurisdiction on a military establishment is United States v. Juvenile Male, 939 F.2d 321 (6th Cir. 1991), cited in 1994 Op. Att’y Gen. U94‑10.  In that case, the U.S. District Court for the Western District of Kentucky’s assumption of jurisdiction over a juvenile delinquency matter occurring on Fort Knox was being challenged by the juvenile.  In affirming the federal district court’s assertion of jurisdiction over the juvenile, the Sixth Circuit recognized the foregoing policy of federal court abstention under the FJDA, citing Sechrist, but held that the State of Kentucky had specifically ceded jurisdiction to federal courts over all matters occurring on the premises of Fort Knox by enactment of an all-encompassing cession provision specific to Fort Knox.  939 F.2d at 323.  Thus, the federal abstention policy of the FJDA was held inapplicable, and the federal district court was held to have properly asserted its jurisdiction under 18 U.S.C. § 5032.  Id. at 323‑24.  Absent from the court’s discussion, however, is any mention of whether the federal authorities had made the required certification of jurisdiction under § 5032.  Id. at 324.

Also noteworthy is that the Sixth Circuit in Juvenile Male, like most courts that have addressed the issue, was faced with a challenge by the juvenile to the assumption of jurisdiction by one authority over another and upheld such assumption.  Similarly, a review of the other cases that have addressed assumption of jurisdiction over juvenile delinquency matters occurring on military establishments reveals that the courts generally have upheld the jurisdictional authority asserted, whether it was state or federal, when challenged by a juvenile.  See, e.g., United States v. Juvenile Male, supra; In the Interest of Charles B, supra.; In the Interest of D.B.S., supra; and M.R.S. v. State, supra. See also Dobbins v. State, supra, (jurisdiction of state court was upheld in challenge by adult charged with criminal matter occurring on Dobbins Air Base because defendant failed in his burden to establish that the United States had accepted jurisdiction over Dobbins Air Base in Cobb County); United States v. Wellington, supra, 102 F.3d at 503‑04 (§ 5032 certification that federal court had jurisdiction was upheld over juvenile’s challenge on petition to transfer him for trial as adult on charges of carjacking and use of firearm during crime of violence).  But see State v. Smith, 400 S.E.2d 405, 408-409 (N.C. 1991) (dismissing state court’s assertion of jurisdiction over juvenile charged with murder on Camp Lejuene military base; however, the decision was made on the basis of the federal authority’s earlier certification under § 5032 that jurisdiction did not exist in the state courts).

Additionally, the cases that uphold the federal court’s assertion of jurisdiction are not particularly persuasive or instructive, since a § 5032 certification, if made in accordance with the criteria listed therein, has the dignity of a final order not subject to further inquiry absent a showing of bad faith.  See, e.g., State v. Smith, supra, 400 S.E.2d at 408-09 (holding that the state’s argument for assertion of jurisdiction over juvenile charged with murders occurring on Camp Lejeune military base must fail in light of requirement that court accept a § 5032 certification as final (citing United States v. Vancier, 515 F.2d 1378 (2d Cir.), cert. denied, 423 U.S. 857 (1975)); United States v. Wellington, supra, 102 F.3d at 504 (Eleventh Circuit “has adopted ‘a general rule of insulating certifications from review’ based on the absence of any authority for judicial review of such certifications . . . .  This court will not question the certification’s accuracy.”).  Thus, when the federal authorities have chosen to certify a juvenile for prosecution in federal court under § 5032, the courts do not look beyond the certification to determine which of the three criteria therein were used to make the certification or whether the facts support the certification.  102 F.3d at 504.  The certification can be based on (a) federal jurisdiction due to lack of state jurisdiction or refusal of the state to assume jurisdiction over the juvenile, (b) lack of adequate state programs to handle the juvenile, or (c) charges of felony violent crimes or substantial federal interest in assuming jurisdiction.[4]  18 U.S.C. § 5032.  Therefore, United States v. Juvenile Male, supra, and State v. Smith, supra, do not support a general rule against state juvenile court jurisdiction over delinquency proceedings under the FJDA.

Unites States v. Daye, 696 F.2d 1305 (11th Cir. 1983), also relied upon in 1994 Op. Att’y Gen. U94-10, likewise was decided on the basis of the § 5032 certification and, further, did not involve a military base but rather a juvenile who was tried in federal court for offenses occurring on Indian lands located within the Florida Everglades National Park, exclusive jurisdiction over which had been ceded by Florida to the United States in 1934.  United States v. Daye, 696 F.2d at 1307.  The juvenile challenged his conviction on various grounds, including improper jurisdiction in the federal court.  Id. at 1306.  Prior to proceeding against the juvenile in federal court, the U.S. Attorney had filed the required certification under § 5032, asserting that the State of Florida did not have jurisdiction over the Indian juvenile due to cession of the entire Park lands.  Id. at 1307.  The Court of Appeals agreed that the certification was proper in that the Indian lands remain in the exclusive jurisdiction of the Federal Government.  Id.  Thus, Daye was decided specifically on the basis of exclusivity of federal jurisdiction over Indian lands, rather than whether the federal abstention policy of the FJDA can be appropriately applied to allow states to assume jurisdiction over juvenile delinquency matters where jurisdiction of a military establishment has been ceded to the Federal Government.  Therefore, Juvenile Male and Daye are not dispositive.

Based on the foregoing, it is my unofficial opinion that the Federal Juvenile Delinquency Act provides authority for Columbia County to assume jurisdiction over matters of juvenile delinquency occurring on the Fort Gordon military installation, except under those circumstances where the federal authority makes a certification under 18 U.S.C. § 5032 that the state system cannot assume such jurisdiction.  In light of this conclusion, 1994 Op. Att’y Gen. U94-10 is withdrawn.




[1] For jurisdiction of lands ceded by a state after February 1, 1940, the effective date of 40 U.S.C. § 3112 (formerly § 255), the Federal Government is required to show acceptance of its jurisdiction by notification to the governor of the state in which the property is located in order for the acceptance of jurisdiction to be complete.  40 U.S.C. § 3112; see DeKalb Cnty. v. Henry C. Beck Co., 382 F.2d 992 (5th Cir. 1967).  Cf. Devega v. State, 286 Ga. 448 (2010) (U.S. has not accepted exclusive criminal jurisdiction over land on which Dobbins Air Force Base in Cobb County is situated)(citing Dobbins v. State, 114 Ga. App. 403 (1966)).    Prior to the enactment of § 255, there was presumed to be acceptance of exclusive federal jurisdiction if the Federal Government had simply used the land for any federal purpose.  State v. Ingram, 545 A.2d 268, 274 (N.J. Super. 1988). For purposes of the analysis herein, however, it is unnecessary to determine whether such an acceptance was either required or accomplished with respect to Fort Gordon, as my conclusion is the same whether or not the Federal Government has accepted exclusive federal jurisdiction over Fort Gordon in accordance with Georgia’s cession laws. 

[2] The FJDA is inapplicable to courts-martial or to any juveniles who are members of the military and who are charged with acts of delinquency or with crimes.  See United States v. Thieman, 14 C.M.A. 326 (1963); United States v. Baker, 14 C.M.A. 311 (1963); United States v. West, 7 M.J. 570 (1979). You have stated that Columbia County authorities would not be seeking to assert jurisdiction over any juveniles who are members of the military.

[3] The Florida case, however, involved reciprocal federal and state statutes regarding transfer of jurisdiction for juvenile matters.  The Florida statute specifically provided for the assumption of state jurisdiction over juvenile offenders once surrendered to the circuit courts as provided in 18 U.S.C. § 5001 (providing for surrender of jurisdiction by U.S. Attorney to the states for juveniles arrested and charged with crimes).  M.R.S., 745 So. 2d at 1139.

[4] Thus, in the event that Columbia County begins assumption of jurisdiction over juvenile delinquency matters occurring on Fort Gordon by formal agreement or otherwise, such assumption cannot override a certification under 18 U.S.C. § 5032 by appropriate federal authorities that federal jurisdiction is proper in any given case.

Prepared by:

Nancy M. Gallagher

Senior Assistant Attorney General