Justia.com Opinion Summary: The dispute in this case involved a circuit court's order requiring a school district to develop and implement an educational plan for a juvenile who was adjudged delinquent after the district expelled him from school. The court of appeals granted the district a writ of prohibition and vacated the circuit court order, concluding that the circuit court did not act within its authority in entering the order. The Supreme Court affirmed, concluding that (1) the school district had statutory authority to expel the student from school; (2) the circuit court did not have statutory authority to order a school district to provide alternative educational services to a juvenile who had been expelled from school by a lawful and unchallenged expulsion order but was still residing in the community; and (3) the court of appeals did not err in utilizing a supervisory writ to review the district court's order to provide appropriate educational resources in this case.
Receive FREE Daily Opinion Summaries by Email Download as PDF
Loading PDF...
<![CDATA[
2011 WI 72
SUPREME COURT
CASE NO.:
COMPLETE TITLE:
OF
WISCONSIN
2009AP2845-W
Madison Metropolitan School District,
Appellant,
v.
Circuit Court for Dane County and the Honorable
David T. Flanagan, III presiding,
Respondents-Petitioners.
REVIEW OF A DECISION OF THE COURT OF APPEALS
OPINION FILED:
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:
SOURCE OF APPEAL:
COURT:
COUNTY:
JUDGE:
JUSTICES:
CONCURRED:
DISSENTED:
July 14, 2011
March 1, 2011
Circuit
Dane
David T. Flanagan, III
CROOKS, J. dissents (Opinion filed).
ABRAHAMSON, C. J. and BRADLEY, J. join dissent.
NOT PARTICIPATING:
ATTORNEYS:
For the respondents-petitioners there were briefs and oral
argument by Bruce Meredith, Madison.
For the appellant there was a brief and oral argument by
Matthew William Bell, associate general counsel, Madison School
Metropolitan, Madison.
2011 WI 72
NOTICE
This opinion is subject to further
editing and modification.
The final
version will appear in the bound
volume of the official reports.
No.
2009AP2845-W
(L.C. No.
2009JV419)
STATE OF WISCONSIN
:
IN SUPREME COURT
Madison Metropolitan School District,
Appellant,
FILED
v.
JUL 14, 2011
Circuit Court for Dane County and the
Honorable David T. Flanagan, III presiding,
A. John Voelker
Acting Clerk of Supreme
Court
Respondents-Petitioners.
REVIEW of a decision and order of the Court of Appeals.
Affirmed.
¶1
DAVID
T.
PROSSER,
J.
This
is
a
review
of
an
unpublished decision and order of the court of appeals1 granting
a
writ
requiring
of
prohibition
the
Madison
and
vacating
Metropolitan
a
circuit
School
court
order
District
(the
District) to develop and implement an educational plan for M.T.,
1
Madison Metro. Sch. Dist. v. Circuit Court for Dane Cnty.,
No. 2009AP2845-W, unpublished order (Wis. Ct. App. June 30,
2010).
No.
2009AP2845-W
a juvenile who was adjudged delinquent after the District had
expelled him from school.
¶2
The
case
presents
important
issues
related
to
the
authority of circuit courts to order educational services for
students who are subject to delinquency petitions and also have
been expelled from school.
The principal questions presented
may be stated as follows.
¶3
First, does a circuit court have authority to order a
school district to provide alternative educational services to a
juvenile
who
has
been
expelled
from
school
by
a
lawful
and
unchallenged expulsion order?
¶4
Second, did the court of appeals err in utilizing a
supervisory writ to review the order of the circuit court?
¶5
We conclude:
(1)
Wisconsin
Stat.
§ 120.13(1)(c)1.2
gives
a
school
district express authority to expel a student from school.
(2)
order
a
A circuit court does not have statutory authority to
school
district
to
provide
alternative
educational
services to a juvenile who has been expelled from school by a
lawful and unchallenged expulsion order but is still residing in
the community.
(a)
board
to
Wisconsin
cooperate
with
Stat.
the
§ 120.12(18)
juvenile
requires
court
and
a
school
the
agency
designated by the court to prepare an educational plan under
2
All references to the Wisconsin Statutes are to the 200708 version unless otherwise noted.
2
No.
2009AP2845-W
Wis. Stat. § 938.33(1)(e) for a pupil or former pupil who is
subject to a dispositional order under Wis. Stat. § 938.34 or
Wis. Stat. § 938.355.
(b)
district
Wisconsin
to
"[c]oordinate
educational
programming"
services
the
as
result
Stat.
§ 120.12(18)
and
for
of
provide
pupils
a
court
requires
for
school
continuity
receiving
order
a
under
of
educational
Wis.
Stat.
§ 938.34(7d).
(c)
school
board
Wisconsin Stat. § 120.12(18) does not require a
or
a
school
district
to
provide
alternative
educational resources to a juvenile who has been expelled from
school under Wis. Stat. § 120.13(1)(c)1.
(d)
Wisconsin Stat. § 938.34(7d) authorizes a circuit
court to order a juvenile to attend a variety of educational
programs, but it does not authorize a circuit court to order a
school district to create an educational program or contract for
an educational program.
(e)
Wisconsin Stat. § 938.45 applies only to natural
persons, not legal entities like school districts.
(3)
The
supervisory
court
writ
to
of
appeals
review
the
did
not
Order
to
err
in
Provide
utilizing
a
Appropriate
Educational Resources in this case.
¶6
Consequently, the decision and order of the court of
appeals is affirmed.
I. BACKGROUND AND PROCEDURAL HISTORY
¶7
On June 5, 2009, M.T., age 15, brought nine bags of
marijuana to the campus of Madison East High School, a public
3
No.
school
M.T.
operated
was
a
by
the
student
Madison
at
the
Metropolitan
school.
2009AP2845-W
School
When
his
District.
conduct
was
discovered, M.T. was arrested and charged with possession of
marijuana with intent to deliver.
¶8
The District immediately filed a complaint seeking the
expulsion of M.T. from the District.
The District sent all
notices required by law, and an independent hearing examiner was
appointed
pursuant
to
Wis.
Stat.
§ 120.13(1)(e).
Hearing
Officer Helen Marks Dicks held an abbreviated hearing on June
26, 2009, and a full hearing on July 6, 2009.
presented
two witnesses
at
the
hearing;
M.T.
The District
and
his
mother
appeared by telephone but did not testify or present evidence.
The hearing was closed to the public at M.T.'s request.
¶9
On
July
12
the
hearing
officer
issued
an
order
concluding that M.T. engaged in conduct that constituted grounds
for
expulsion
under
Wis.
Stat.
§ 120.13(1)
and
interests of the school demanded M.T.'s expulsion.
that
the
As requested
by the District, she ordered M.T. expelled for three semesters.
She adopted the District's recommendations as to the conditions
of expulsion, which included giving M.T. the right to apply for
readmission after one semester provided certain conditions were
met.3
The District Board of Education approved the order with
modifications on July 21, 2009.
The expulsion order denied M.T.
3
M.T. complied with early readmission requirements and was
reinstated by the District as a full-time student on January 25,
2010.
4
No.
any educational
services
from
the
District
for
2009AP2845-W
at
least
one
semester, namely, the fall semester of 2009-10.
¶10
Dane
A separate proceeding commenced on July 9, 2009, when
County
authorities
filed
a
delinquency
petition
against
M.T. in the Dane County Circuit Court.
The case was assigned to
Circuit
held
Judge
David
T.
Flanagan
who
a
plea
hearing
on
August 8 and a dispositional hearing on August 26, 2009.
¶11
Prior
to
the
dispositional
hearing,
Judge
Flanagan
ordered the Dane County Department of Human Services (DHS) to
submit a predisposition report.
938.38(1)(a).
Wis. Stat. §§ 938.33(1) and
A predisposition report must include: "A plan for
the provision of educational services to the juvenile, prepared
after consultation with the staff of the school in which the
juvenile is enrolled or the last school in which the juvenile
was enrolled."
¶12
Wis. Stat. § 938.33(1)(e).
On August 18, 2009, the DHS submitted a report that
suggested
15
recommendation
specific
that
unexcused absences."
rules
M.T.
of
attend
supervision,
school
including
regularly
"with
a
no
The report also advised the court that the
District was refusing to provide education programming for M.T.
because he had been expelled.
¶13
The court's August 26 dispositional order included the
provision that M.T. "Attend school regularly without unexcused
absences."
¶14
On September 14 Judge Flanagan sent a letter to the
Superintendent
of
the
District,
Flanagan's letter reads in part:
5
Daniel
A.
Nerad.
Judge
No.
2009AP2845-W
I
am
a
Dane
County
Circuit
Court
Judge
responsible for cases in the Juvenile Court. . . . I
have available an impressive range of resources,
including direct supervision by experienced social
workers of the Dane County Department of Human
Services. Remarkably, I find I do not have available
what I believe to be the key resource, a bare minimum
of educational opportunity and activity. I am advised
that this is because the District has expelled this
student and will exclude him for possibly three
semesters and certainly for one semester.
This young man lives with his mother.
I have
concluded that she is genuinely concerned for her son
and willing to cooperate with efforts to get him back
on the proper path.
I am advised that this family
cannot afford private tutoring.
I have contacted
several alternative educational programs and I can
find nothing for him.
. . . .
I can understand a determination that the safety and
security of East High may be well served by excluding
a student from the facility.
I cannot, however,
fathom the need to deny to a young man all possibility
of
participating
in
some
educational
activity,
somehow, somewhere.
It need not be fun; it need not
be comfortable, but some minimal opportunity should be
available. . . .
It certainly is not my place to supervise or
second-guess the complex operation of East High or any
other educational facility. . . .
I simply suggest
that the juvenile court and the District can and
should be working together in this situation.
I am
confident
that the
legitimate
interests
of
the
District can be fully met without the potentially
destructive total exclusion that has been imposed.
¶15
On September 28 social worker Maureen Murphy of the
Dane County Department of Human Services sent a memorandum to
Judge
Flanagan,
District's
advising
Expulsion
him
that
Coordinator,
she
without
had
contacted
avail.
the
Murphy
reported on the various educational options she had explored and
6
No.
that
she
had
recommended
that
paperwork for home schooling.
M.T.'s
mother
2009AP2845-W
fill
out
the
Murphy's report noted, "Once this
is done, she has access to resources available through the WI
Dept. of Public Instruction [DPI].
resources and programs . . . .
There are many free online
His mother is home during the
day and has a computer with internet service."
Then Murphy
added:
I am aware that the Court has sent correspondence to
the Madison School District expressing concern about
the lack of education options for [M.T.] and I am
appreciative of this support. . . .
Unfortunately,
[M.T.] is (like many students who are expelled) a
young man who has already struggled in school with
attendance and behavior
problems.
His
current
expulsion will only further his "disconnect" from
school and getting a much needed education.
¶16
replied
In
to
a
letter
Judge
dated
October
Flanagan's
4,
letter.
2009,
Chief
of
the
District
Staff
Steve
Hartley wrote that the District's "policies and systems do not
currently provide for the type of services for expelled students
as envisioned in your letter."
the court.
He asked for an appointment with
He also acknowledged receiving a draft Order to Show
Cause.
¶17
Judge Flanagan issued an Order to Show Cause to the
District on October 5.
advised
that
the
The order said that the court had been
District
"refuses
to
provide
even
minimal
educational opportunity" to M.T. at any District facility "and
refuses to provide even home school materials . . . to use under
the supervision of his mother who is home during the day."
7
No.
¶18
2009AP2845-W
The court said that, working through the Dane County
DHS, it was willing to craft a supervisory plan to serve the
reasonable concerns of the District "at whatever location or
manner
it
offers . . . M.T.
access
to
reasonably
adequate
educational opportunity."
¶19
Then the court added:
In light of the foregoing the court concludes
that the refusal on the part of the [District] to make
some reasonable effort to provide minimally adequate
educational resources to [M.T.] . . . has impaired the
ability of the court . . . to discharge its statutory
obligations
pursuant
to
the
Juvenile
Code
of
Wisconsin.
Therefore, pursuant to sec. 938.45(1),
Wis. Stats., the court orders the [District] to show
cause at 9:30 a.m. Friday, October 16, 2009 . . . why
the court should not order it to provide [M.T.]
reasonably
adequate
educational
resources,
at
a
location and in a manner subject to the supervision of
the court.
¶20
expressed
In
a
its
letter
dated
objection
to
October
the
12,
order
2009,
to
the
show
District
cause,
and
reiterated its position that the court's actions would usurp the
District's statutory expulsion authority.
¶21
The show cause hearing took place on October 16, 2009,
with oral arguments provided by the District and an assistant
district attorney.
defining
the
During the hearing, the District argued that
terms
of
a
student's
expulsion
are
within
its
authority, and the court was attempting to usurp that authority
by amending the terms of M.T.'s expulsion to provide him with
educational services.
In response to the court's concerns about
continuity of educational services, the District offered M.T.
8
No.
2009AP2845-W
access to its public curriculum, but the court found this option
to be insufficient.
¶22
Accordingly,
on
the
same
day,
the
court
issued
an
"Order to Provide Appropriate Educational Resources," directing
the District to provide M.T. with services "not less than those
provided in the Dane County Juvenile Detention Center . . . at
whatever location and in whatever manner the District deems to
be
safe
and
educationally
appropriate."
In
support
of
its
order, the circuit court stated that the District's refusal to
attempt
or
consider
opportunity"
a
contributes
reasonable
to
under Wis. Stat. § 938.45.
the
District
§ 990.01(26).
is
a
The
the
delinquency
"challenge
of
the
and
juvenile
Judge Flanagan also concluded that
"person"
circuit
educational
under
court's
§ 938.45
order
and
did
Wis.
not,
Stat.
however,
oppose the District's decision to expel M.T., and it conceded
that the District had a proper basis for doing so.
¶23
Following
the
hearing,
the
District
developed
an
educational program for M.T.4 providing 10 hours per week of
4
The plan provided specifically:
a.
The District shall implement the provision
of daily instruction one-on-one to [the juvenile] for
not less than two hours with assignment of appropriate
independent work to be completed by [the juvenile]
outside of instructional time, beginning with two high
school courses, commencing October 28, 2009.
b.
The District shall monitor attendance and
academic progress as well as progress towards meeting
early
readmission
conditions
and
shall
advise
Department of Human Services Social Worker . . . as to
such matters.
9
No.
direct
instruction,
proposal.
At
and
the
the
same
court
time
accepted
the
the
District
2009AP2845-W
District's
submitted
its
educational program, it also filed a Motion for Reconsideration,
a Brief in Support of Motion for Reconsideration, and a Motion
to Clarify.
The circuit court denied the District's Motion for
Reconsideration on October 21, 2009.
¶24
The District next filed a timely Notice of Appeal and
a Notice of Intent to Pursue Postdisposition Relief on November
5, 2009.
On appeal, it argued that the circuit court had acted
outside the authority afforded by the Juvenile Justice Code when
it ordered
the District
educational services.
to
restrict
future
to
offer
an
expelled
student
direct
The District also sought a determination
attempts
by
courts,
and
others,
from
unilaterally amending lawful expulsion orders.
¶25
On January 12, 2010, M.T. filed a motion to withdraw
because he was not the real party in interest.5
in
response
Higginbotham
to
the
motion,
permitted
M.T.
court
to
of
appeals
withdraw
and
On February 17,
Judge
Paul
substituted
B.
the
Circuit Court for Dane County and Judge Flanagan as respondents,
thus framing the issue around a circuit court's authority to
c.
The teacher assigned to provide instruction
shall contact Social Worker Murphy, on a not less than
weekly basis to advise as to attendance, behavior and
academic progress.
5
M.T. filed a motion to dismiss in the alternative, which
the court of appeals denied.
10
No.
2009AP2845-W
direct the school district to provide educational services to a
student
who
had
been
expelled.
Judge
Higginbotham
also
construed the District's appeal as a petition for a supervisory
writ.6
¶26
In its decision and order dated June 30, 2010, a full
panel of the court of appeals determined that the circuit court
could not rely on Wis. Stat. §§ 120.12(18) or 938.45 to override
the District's prior determination to expel a juvenile under
Wis. Stat. § 120.13(1)(c)1.
Madison Metro., No. 2009AP2845-W at
7, 10-11.
¶27
In
addition,
the
court
held
that
the
District
satisfied the five criteria for granting a supervisory writ: (1)
an appeal would be an inadequate remedy; (2) the duty of the
circuit court is plain; (3) its refusal to act within such duty
or its intent to act in violation of such duty is clear; (4) the
results
of
the
circuit
court's
action
would
not
only
be
prejudicial, but also incur extraordinary hardship; and (5) the
request for relief was made promptly and speedily.
(citing
State
ex
rel.
Dressler
v.
Circuit
Court
Id. at 6
for
Racine
County, 163 Wis. 2d 622, 630, 472 N.W.2d 532 (Ct. App. 1991)).
¶28
Specifically, the court reasoned that "the possibility
that the school district might be required in the future to
provide similar educational services to an undetermined number
of expelled students under the circuit court's interpretation of
6
Wisconsin Stat. § 809.51 is the appellate rule that
governs petitions for a "[s]upervisory writ and original
jurisdiction to issue prerogative writ."
11
No.
the relevant
statutes" satisfied
requirement.
Madison Metro., No. 2009AP2845-W at 6.
¶29
the
"extraordinary
2009AP2845-W
hardship"
The court of appeals reasoned:
In sum, the school district had the explicit
statutory authority to refuse to provide educational
services to a juvenile pursuant to a valid expulsion
order, and the circuit court had no explicit authority
to
order
the
school
district
to
provide
any
educational services which the district did not itself
recommend as part of its plan. We therefore conclude
that the challenged order in this case clearly
violated the circuit court's plain duty to act within
its authority.
Id. at 11.
¶30
Accordingly, the court of appeals granted the District
a writ of prohibition and vacated the circuit court's order to
provide educational services to M.T.
¶31
Id. at 12.
The circuit court petitioned this court for review,
which we granted on October 27, 2010.
II. STANDARD OF REVIEW
¶32
The first issue is whether the circuit court had the
authority to order the District to provide educational services
to a lawfully expelled student.
This requires us to determine
the scope of the circuit court's authority under the Juvenile
Justice Code,7 in tandem with the District's authority and duties
under the School District Government statutes.8
This analysis
implicates both judicial authority and statutory analysis, both
of which are questions of law.
7
Wis. Stat. ch. 938.
8
See State v. McClaren, 2009 WI
Wis. Stat. ch. 120.
12
No.
2009AP2845-W
69, ¶14, 318 Wis. 2d 739, 767 N.W.2d 550; Konneker v. Romano,
2010 WI 65, ¶24, 326 Wis. 2d 268, 785 N.W.2d 432.
¶33
The
second
issue
is
whether
the
court
of
appeals
properly exercised its discretion in issuing a supervisory writ.
A
person
may
supervisory
court
and
request
the
jurisdiction
its
court
to
presiding
of
issue
appeals
a
judge.
to
prerogative
Wis.
Stat.
exercise
writ
its
over
§ 809.51.
a
A
supervisory writ is an extraordinary remedy to prevent a court
from refusing to perform, or from violating, its plain duty.
Dressler,
163
Wis. 2d at
630.
In
appeals issued a writ of prohibition.
this
case,
the
court
of
"A writ of prohibition is
an extraordinary remedy traditionally employed to restrain an
inferior tribunal from exceeding its jurisdiction."
Madison
v.
Wis.
N.W.2d 584.
DWD,
2003
WI
76,
¶9,
262
City of
Wis. 2d 652,
664
It may also be employed to prevent a public entity
from exceeding its statutory authority.
State ex rel. DPI v.
DILHR, 68 Wis. 2d 677, 686-87, 229 N.W.2d 591 (1975).
¶34
exercise
The decision to issue a supervisory writ involves an
of
discretionary
discretion.
Dressler,
determination
exercise of that discretion.
¶10.
Accordingly,
we
is
163
Wis. 2d at
reviewed
for
an
630.
A
erroneous
City of Madison, 262 Wis. 2d 652,
will
affirm
a
court's
discretionary
decision if "the court examined the relevant facts, applied a
proper
standard
of
law,
and,
using
a
demonstrated
rational
process, reached a conclusion which a reasonable judge could
reach."
Id.
III. DISCUSSION
13
No.
¶35
This
case
exposes
the
tension
between
2009AP2845-W
a
school
district and a circuit court when a juvenile has been expelled
from school for delinquent conduct but has not been committed by
the juvenile court to an institution or program that is required
by statute to provide educational services.
the
issue
of
whether
the
juvenile
must
In this situation,
receive
educational
services is uncertain.
¶36
The powers of a school board are enumerated in Wis.
Stat. § 120.13.
The first power listed is related to suspension
and expulsion.
School board powers. The school board of a common
or union high school district may do all things
reasonable
to
promote
the
cause
of
education,
including establishing, providing and improving school
district programs, functions and activities for the
benefit of pupils, and including all of the following:
(1) School
expulsion.
government
rules;
suspension;
. . . .
(c)1.
The school board may expel a pupil from
school whenever it finds the pupil guilty of repeated
refusal or neglect to obey the rules . . . or finds
that the pupil engaged in conduct while at school or
while under the supervision of a school authority
which endangered the property, health or safety of
others . . . and is satisfied that the interest of the
school demands the pupil's expulsion.
Wis. Stat. § 120.13(1).
¶37
The power to expel students from a public school is
not new.
For instance, § 54, ch. XXIII, Revised Statutes of
State of Wisconsin (1871), reads:
14
No.
2009AP2845-W
The board shall have power to make all needful
rules and regulations for the organization, graduation
and government of the school or schools established in
the district; said rules to take effect and be in
force when a copy of the same, signed by a majority of
the board, shall be filed with the clerk; to suspend
any pupil from the privilege of the school for noncompliance with the rules established by them, or by
the teacher, with their consent; and to expel from
school any pupil who shall persistently refuse or
neglect to obey the rules and regulations above
mentioned, whenever, upon due examination, they shall
become satisfied that the interests of the school
demand such expulsion.
(Emphasis added.)
¶38
In State ex rel. Dresser v. District Board of School
District No. 1 [St. Croix Falls], 135 Wis. 619, 627-28, 116 N.W.
232 (1908), the court stated:
This
court . . . holds
that
the
school
authorities have the power to suspend a pupil for an
offense . . . which
has
a
direct
and
immediate
tendency to influence the conduct of other pupils
while in the school room, to set at naught the proper
discipline of the school, to impair the authority of
the teachers, and to bring them into ridicule and
contempt. Such power is essential to the preservation
of order, decency, decorum, and good government in the
public schools.
. . . .
The school authorities must necessarily be invested
with a broad discretion in the government and
discipline of the pupils, and the courts should not
interfere with the exercise of such authority unless
it has been illegally or unreasonably exercised.
¶39
These sentiments, expressed more than a century ago,
are qualified now by a student's due process protections and
individual
rights.
Nonetheless,
there
is
no
dispute
that
a
school district may expel students who violate certain rules,
15
No.
2009AP2845-W
and there is no challenge to the propriety of the expulsion of
M.T. in this case.
In a real sense, the dispute here boils down
to whether the legislature has modified the statutes so that
expulsion today does not mean the same as it meant in the past,
that
is,
expulsion
from
the
entire
district,
without
qualification, unless the district chooses otherwise.
¶40
The term "expel" is not defined in the School District
Government statutes.
The DPI, however, has long interpreted the
term to mean that a school district bears no responsibility for
providing
an
education
to
expelled
students.
See
Remer
v.
Burlington Area Sch. Dist., 149 F. Supp. 2d 665, 668 n.3 (E.D.
Wis. 2001) (citing Susan Marie H. v. Kenosha Unified Sch. Dist.,
State Superintendent of Pub. Instruction Decision and Order No.
157 (June 28, 1988); Ricardo S. v. Sch. Dist. of Wis. Rapids,
Superintendent of Pub. Instruction Decision and Order No. 145
(Sept. 5, 1986)).9
¶41
This construction is supported by the statutory scheme
in the School District Government statutes.
For example, no
school district may be required to enroll an expelled student
9
The 2001 Remer decision followed a decision in the United
States Court of Appeals, Remer v. Burlington Area School Dist.,
205 F.3d 990, 997 n.2 (7th Cir. 2000), in which the Seventh
Circuit also cited the two decisions of the State Superintendent
of Public Instruction.
The court said: "In one of its
submissions to the district court, the School District explained
that 'once a student has been expelled from a school, the
district no longer has the responsibility to provide educational
services to the student.'" Id.
16
No.
2009AP2845-W
while an expulsion order is in effect in another district.
Wis.
Stat. § 120.13(1)(f).
¶42
Furthermore, while the DPI encourages school districts
to provide alternative education to expelled students, it has
concluded that such programming is not required, and a failure
to provide such alternative education is not a violation of an
expelled student's constitutional rights.
See C.M. v. Kenosha
School Dist. Bd. of Educ., Superintendent of Pub. Instruction
Decision and Order No. 616 (April 17, 2008).
¶43
The
DPI
has
memorialized
its
construction
of
the
expulsion authority in two documents intended for the public:
"My
child
has
been
responsible
for
finding
expelled
child.")
expelled.
and
an
Now
educational
"Answers
to
("Parents
what?"
program
Frequently
for
Asked
are
their
School
Discipline Questions" ("In general, expulsion from a Wisconsin
public school district removes a pupil's right to receive a free
public education from any Wisconsin public school.").
These
documents are available on the DPI's website: www.dpi.wi.gov.
(last
examined
on
July
8,
2011).
The
DPI's
longstanding
interpretation of expulsion is entitled to deference.
¶44
According to the District, the fact that an expelled
student also has been adjudicated delinquent does not change a
school
district's
authority
to
expel
a
student
without
educational programming.
¶45
The circuit court stakes out a different position.
It
contends that under the Juvenile Justice Code adopted in 1995,
see
1995
Wis.
Act
77,
"circuit
17
courts
have
been
given
a
No.
2009AP2845-W
preeminent role in juvenile dispositions and are entitled to
exercise
their
statutory
or
(Petitioner's
discretion,
constitutional
brief
at
unless
restricted
limitations
19)(Emphasis
on
by
their
added.)
explicit
authority."
This
theory
effectively eliminates the need to find statutory authority for
the court's order in a juvenile disposition.
¶46
The circuit court adds that provisions in the code
"strongly
support
a
circuit
court's
authority
to
provide
educational services to juveniles residing at home or outside of
a
detention
expelled."
center,
regardless
(Petitioner's
of
whether
at
24-25)
brief
the
juvenile
This
was
proposition
would inject the circuit court into a district's educational
programming.
¶47
Finally, the circuit court asserts:
The legislature needed an umpire to manage all of
the distinct interests and parties, as well as to
prevent agencies from unduly encroaching on each
other's authority or from cost-shifting from one unit
of government to another. The most logical umpire is
the circuit court judge, who is in the best position
to see the big picture and coordinate all of the
required services.
This logic applies to all
juveniles, including those who have been expelled.
(Petitioner's brief at 26-27)
This
formulation
dispositions
of
under
the
Wis.
circuit
Stat.
court's
§ 938.355
power
is
in
not
juvenile
limited
to
educational services.
¶48
several
To support its position, the circuit court relies on
statutory
provisions,
§§ 938.34(7d), 120.12(18), and 938.45.
18
including
Wis.
Stat.
No.
¶49
adjudged
agency
to
2009AP2845-W
As noted above, before its disposition of a juvenile
to
be
delinquent,
prepare
a
report
the
circuit
with
court
background
designates
information
an
and
recommendations on various matters including a "plan for the
provision
of
educational
services
to
the
juvenile,
prepared
after consultation with the staff of the school in which the
juvenile is enrolled or the last school in which the juvenile
was
enrolled."
Wis.
Stat.
§ 938.33(1)(e).
"If
the
court
adjudges a juvenile delinquent, the court shall enter an order
deciding one or more of the dispositions of the case as provided
in this section under a care and treatment plan."
Wis. Stat.
§ 938.34.
¶50
These dispositions include:
(7d) EDUCATION PROGRAM.
(a) Except as provided
in par. (d), order the juvenile to attend any of the
following:
1.
A
nonresidential
educational
program,
including a program for children at risk under s.
118.153, provided by the school district in which the
juvenile resides.
2.
Under a contractual agreement with the
school district in which the juvenile resides, a
nonresidential educational program provided by a
licensed child welfare agency.
3.
Under a
school district in
educational program
nonsectarian agency
district in which
complies with 42 USC
contractual agreement with the
which the juvenile resides, an
provided by a private, nonprofit,
that is located in the school
the juvenile resides and that
2000d.
4.
Under a contractual agreement with the
school district in which the juvenile resides, an
educational program provided by a technical college
19
No.
2009AP2845-W
district located in the school district in which the
juvenile resides.
Wis. Stat. § 938.34(7d)(a).10
¶51
This
provision
has
been
part
of
the
juvenile
disposition statute since 1988.
See § 12, 1987 Wis. Act 285,
creating
(1988).
Wis.
Stat.
added, without
§ 48.34(12)
any written
explanation,
The
as
part
provision
of
a
was
Senate
substitute amendment to Assembly Bill 389.
¶52
In
its
decision,
the
court
of
appeals
discussed
subsection (7d) as follows:
The circuit court points out that Wis. Stat.
§ 938.34(7d) authorizes it to order a delinquent
juvenile to attend "[a] nonresidential educational
program . . . provided by the school district in which
the juvenile resides" and that Wis. Stat. § 938.355(1)
authorizes it to employ "those means necessary to
promote the objectives" of the juvenile justice code.
It claims these provisions allow it to order a school
district to provide educational services, even to an
expelled student.
We note . . . that the power to order a juvenile
to attend a provided program is not the same as the
power to order a school district to provide a program.
Rather, it is implicit in Wis. Stat. § 938.34(7d) that
a program must already be provided by the school
district before the court can order the juvenile to
attend it.
Indeed, the process of having the school
district
recommend
an
educational
plan
for
a
delinquent student serves the function of identifying
10
This section governing dispositions for educational
programming is not discussed in the legislative notes for 1995
Wis. Act 77. It has not been changed in any substantive fashion
since its enactment, apart from the addition of a new
subdivision which became effective May 2010. 2009 Wis. Act 302
§ 104.
We find no discussion of the legislature's intent
regarding the interplay of this statute with the School District
Government statutes.
20
No.
2009AP2845-W
for the court exactly what program(s) the school
district can provide for the juvenile. When a school
district has expelled a student and ordered that no
educational services be provided for a certain period
of time, logic dictates that there are no programs
provided by the district available to the student
during that expulsion period.
Madison Metro., No. 2009AP2845-W at 9.
¶53
District
In
sum,
had
the
the
court
explicit
of
appeals
statutory
concluded
authority
to
that
the
refuse
to
provide educational services to a juvenile who has been expelled
pursuant to a valid expulsion order, and that authority is not
overridden by Wis. Stat. § 938.34(7d).
¶54
The court of appeals was correct.
We are unable to
interpret § 938.34(7d) as broadly as the circuit court suggests
because it would empower the court to order school districts to
create
programs
subsection
or
enter
(7d)(a)——"order
into
the
contracts.
juvenile
to
The
language
attend"——is
in
quite
different from the language in subsection (7d)(b)——"order the
school
board
to
disclose"
The
latter
language
is
a
clear
directive to the school board; the former is not.
¶55
The circuit court relies upon (and disputes the court
of appeals' interpretation of) Wis. Stat. § 120.12(18), which is
part of the list of school board duties:
The school board of a common or union high school
district shall:
. . . .
(18) Coordinate and provide for continuity of
educational
programming
for
pupils
receiving
educational services as the result of a court order
under s. 48.345 (12) or 938.34 (7d), including but not
limited to providing a report to the court assigned to
21
No.
2009AP2845-W
exercise jurisdiction under chs. 48 and 938 and the
agency which is required to submit an educational plan
for a child under s. 48.33 or 938.33 (1)(e).
The
report shall describe the child's educational status
and
make
recommendations
regarding
educational
programming for the child.
The report shall be in
writing, except that if the educational plan under s.
938.33 (1)(e) is presented orally at the dispositional
hearing the report may be presented orally to the
court assigned to exercise jurisdiction under chs. 48
and 938 and the agency at the dispositional hearing.
If written, the report shall be provided to the court
assigned to exercise jurisdiction under chs. 48 and
938 and the agency at least 3 days before the date of
the child's dispositional hearing.
Wis. Stat. § 120.12(18).
¶56
Juvenile
This
provision,
Justice
Code.
though
See
Wis.
amended,
Stat.
also
predates
§ 120.12(18)
the
(1988),
created by § 30, 1987 Wis. Act 285.
¶57
The court of appeals concluded that there is nothing
in § 120.12(18) that requires a school district to provide any
specific educational services to a delinquent juvenile who has
been expelled.
The school board does have a duty to provide
assistance to the
required
under
court
Wis.
and
Stat.
the
agency
§ 938.33(1)(e)
producing
and,
the
report
generally,
to
coordinate and provide for continuity of educational programming
for
juveniles
receiving
dispositional order.
educational
services
under
a
Some of those pupils could be sent by a
dispositional order to an institution like Ethan Allen; some
could
be
participate
sent
in
to
a
local
alternative
detention
schooling
center;
provided
by
some
could
the
school
district; some might not be suspended or expelled at all.
22
No.
¶58
numerous
The
statutory
situations
in
language
which
is
the
broad
school
2009AP2845-W
because
there
district
would
are
be
heavily involved with a juvenile's education, while there are
other situations in which the juvenile would be totally removed
from the school district, even without expulsion.
Participation
by the school district in attempting to provide for a continuity
of
educational
programming
would
nearly
always
be
in
order
without implying that the school district has a duty to deliver
direct educational services to a student after expulsion.
¶59
We agree with the court of appeals that the circuit
court erred by relying on Wis. Stat. § 938.45 as authority to
bind
the
District
and
to
support
its
Order
to
Provide
Appropriate Educational Resources.
¶60
Wisconsin Stat. § 938.45 is titled, "Orders applicable
to adults."11
In pertinent part, the statute provides:
(1) Orders when adult contributed to condition
of juvenile.
(a) If in the hearing of a case of a juvenile
alleged to be delinquent under s. 938.12 or in need of
protection or services under s. 938.13 it appears that
any person 17 years of age or older has been guilty of
11
The circuit court cited this section in its Order to Show
Cause, issued on October 5, 2009, and in its Order to Provide
Appropriate Educational Services, issued on October 16, 2009.
In its reply brief to this court, the circuit court states that
it is no longer claiming Wis. Stat. § 938.45 "as a significant
basis for its authority," but instead is relying broadly on the
Juvenile Justice Code and Wis. Stat. § 120.12(18).
However,
because the circuit court cited Wis. Stat. § 938.45 as the
original basis for its exercise of authority over the District,
we find it appropriate to address whether such exercise was
proper.
23
No.
2009AP2845-W
contributing to, encouraging, or tending to cause by
any act or omission, such condition of the juvenile,
the court may make orders with respect to the conduct
of that person in his or her relationship to the
juvenile, including orders relating to determining the
ability of the person to provide for the maintenance
or care of the juvenile and directing when, how, and
where funds for the maintenance or care shall be paid.
(b) An act or failure to act contributes to a
condition of a juvenile . . . if the natural and
probable consequences of that act or failure to act
would be to cause the juvenile to come within the
provisions of s. 938.12 or 938.13.
Wis. Stat. § 938.45(1)(a)-(b).
¶61
An "adult" is defined in turn under § 938.02(1) as "a
person who is 18 years of age or older," except for the purposes
of prosecuting or investigating a crime allegedly committed by a
17-year-old.
The term "person" is not defined in the Juvenile
Justice Code.
¶62
Under Wis. Stat. § 990.01(26), the term "person" is
generally defined to include "all partnerships, associations and
bodies
politic
or
corporate."
However,
Wis.
Stat.
§ 990.01
provides that the following definitions set forth in ch. 990
"shall be construed as indicated unless such construction would
produce a result inconsistent with the manifest intent of the
legislature."
would
be
(Emphasis added.)
inconsistent
legislature
to
interpret
The District asserts that it
with
the
the
term
manifest
"person"
intent
to
of
encompass
the
the
District in this context.
¶63
We have not previously had the opportunity to construe
the meaning of the term "person" in the context of Wis. Stat.
§ 938.45(1).
When interpreting the meaning of a statute, we
24
No.
2009AP2845-W
begin with the language of the statute and give it its common,
ordinary, and accepted meaning.
State ex rel. Kalal v. Circuit
Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681
N.W.2d 110.
further.
When that meaning is plain, courts will look no
Id.
We interpret statutory language in context——that
is, in relation to surrounding or other closely related statutes
and reasonably, to avoid absurd or unreasonable results.
Id.,
¶46.
¶64
We conclude that the plain meaning of "person" as it
is used in Wis. Stat. § 938.45(1) refers to natural persons.
Consequently, a school district is not capable of contributing
to the delinquency of a minor under the plain language of this
statute
because
a
school
district
is
not
a
natural
person.
Accordingly, the circuit court erred as a matter of law when it
relied on this provision to obtain authority over the District.
¶65
the
Section 938.45 uses the term "adult" in the title of
statute
("Orders
when
adult
contributed
to
condition
of
juvenile."), and it refers to an "adult" when it uses the phrase
"any person 17 years of age" in the text in connection with
alleged
criminal
conduct.
The
use
of
the
term
"adult"
is
significant because it is a defined term in the Juvenile Justice
Code.
By specifying that this section addresses "adults," not
25
No.
2009AP2845-W
merely "persons," the legislature invoked the age requirements
set forth in § 938.02(1).12
¶66
Under Wis. Stat. § 938.02(1), the general principle is
that an "adult" is a person who is 18 years of age or older.
interpret § 938.45(1)(a) as
as
the
including
District
result.
Because the section governs an adult contributing to
statute
is
subject
to
the
age
"person"
an
and
such
any
render
bodies
entities
the delinquency of a minor,
would
governmental
To
unreasonable
falling
requirements
of
within
the
§ 938.02(1).
There would be no rational justification for including entities
such as the District within a circuit court's authority in a
delinquency
proceeding,
but
only
if
the
entity
had
been
in
existence for 17 or 18 years.
¶67
As the District noted, one school district has the
same rights and obligations and duties as another, regardless of
how long it has been in existence.
There is no rational basis
for
created
the
argument
that
by
statute,
exempted
the
a
recently
while
another
district
that
had
would
be
been
in
existence for 18 years would be subject to the circuit court's
authority.
¶68
The legislative intent behind establishing a minimum
age for contributing to the delinquency of a juvenile is clear.
12
Wisconsin Stat. § 990.001(6) reads: "STATUTE TITLES AND
HISTORY
NOTES.
The
titles
to
subchapters,
sections,
subsections, paragraphs and subdivisions of the statutes and
history notes are not part of the statutes."
However, courts
often examine titles and history notes because they provide
valuable clues to the meaning of statutory text.
26
No.
These
statutes
were
enacted
to
control
adults
2009AP2845-W
who
have
contributed to, encouraged, or tended to cause the juvenile's
delinquent condition.
¶69
Section 938.45(1)(a)
refers
to
"the
conduct
person in his or her relationship to the juvenile."
added.)
of
that
(Emphasis
The choice of the words "his or her" also indicates
that the legislature contemplated the exercise of authority over
a natural
person,
capable
of
description
as
male
or
female,
rather than a gender-neutral entity that could be described as
"it."
¶70
contended
The court of appeals observed that the circuit court
that
the
District's
refusal
to
provide
educational
programming for M.T. contributed to the juvenile's delinquent
condition.
It noted that the District's expulsion order and its
subsequent refusal to provide services occurred after the only
identified delinquent conduct by the juvenile.
Thus, it was not
logical to suggest that the District's action contributed to,
encouraged, or tended to cause the juvenile's delinquency.
The
court of appeals concluded that the District "cannot be said to
have failed in any duty that it owed to the juvenile."
¶71
attempted
future
The court of appeals was correct.
to
gain
delinquency
authority
if
educational services.
the
over
the
District
The circuit court
District
refused
to
by
predicting
supply
direct
If the statute were interpreted to apply
to potential problems that might be linked to public or private
entities, not just actual adults, there would be no stopping
point for the circuit court's authority over third parties.
27
No.
¶72
We
conclude
that
a
plain
reading
of
2009AP2845-W
the
statutory
language in Wis. Stat. § 938.45, coupled with our obligation to
construe statutes in a manner that avoids unreasonable results,
clearly
indicates
that
the
term
"person"
encompasses
persons, not entities such as the District.13
natural
If the District
cannot be considered a "person," it cannot have contributed to
M.T.'s delinquency; consequently, the circuit court could not
obtain authority over the District under Wis. Stat. § 938.45.
¶73
In sum, we conclude that a circuit court does not have
statutory
authority
to
order
a
school
district
to
provide
alternative educational resources to a juvenile who has been
expelled
order.
from
school
by
a
lawful
and
unchallenged
expulsion
This conclusion applies longstanding Wisconsin law and
13
As noted previously, this question of statutory interpretation of Wis. Stat. § 938.45(1)
is one of first impression. We have, however, considered the crime of contributing to the
delinquency of a child as it is set forth in § 948.40. Those decisions bolster our conclusions set
forth above: the purpose of this section is to provide jurisdiction over and consequences for
natural persons, not political entities like the District. See State v. Patterson, 2010 WI 130, ¶8,
329 Wis. 2d 599, 790 N.W.2d 909 (an adult contributed to the delinquency of a minor by
providing Oxycodone to the 17-year-old victim); State v. Williams, 2002 WI 58, ¶76, 253
Wis. 2d 99, 644 N.W.2d 919 (an adult male contributed to the delinquency of a minor by
allowing the child to engage in illegal gambling); In re Disciplinary Proceedings Against Martin,
112 Wis. 2d 661, 662, 334 N.W.2d 107 (1983) (an attorney's law license was suspended for
contributing to the delinquency of a minor for serving alcoholic beverages to a 14-year-old); In
re Disciplinary Proceedings Against Rabideau, 102 Wis. 2d 16, 19-20, 306 N.W.2d 1 (1981) (an
attorney's law license was suspended for contributing to the delinquency of a minor for
supplying marijuana to a 16-year-old); State ex rel. Cholka v. Johnson, 96 Wis. 2d 704, 707-08,
292 N.W.2d 835 (1980) (an adult contributed to the delinquency of a minor by furnishing
alcohol to a 16-year-old girl); Jung v. State, 55 Wis. 2d 714, 716-17, 201 N.W.2d 58 (1972) (an
adult male contributed to the delinquency of a minor by allowing a 15-year-old girl to stay at his
apartment for approximately one month).
28
No.
is
in
accord
with
decisions
supervisory
writ
by
courts
in
2009AP2845-W
several
other
jurisdictions.14
¶74
A
is
"a
blending
mandamus and the writ of prohibition."
630.
Like
dedicated
those
to
jurisdiction.
¶75
A
extraordinary
the
of
the
writ
of
Dressler, 163 Wis. 2d at
writs,
discretion
of
a
writ
court
the
supervisory
original
of
is
Id.
writ of mandamus
has
long
been recognized
as "a
summary, drastic, and extraordinary writ issued in the sound
discretion of the court" to direct a public officer to perform
his plain statutory duties.
Menzl v. City of Milwaukee, 32
Wis. 2d 266, 275-76, 145 N.W.2d 198 (1966) (internal quotations
and citations omitted).
Because of the extraordinary nature of
this discretionary power, the officer's duty must be clear and
unequivocal.
¶76
A
Id. at 276.
writ
traditionally
used
of
prohibition,
"to
keep
an
on
the
inferior
other
court
hand,
from
is
acting
outside its jurisdiction when there was no adequate remedy by
appeal
Wis. 2d
or
otherwise."
609,
614,
143
State
ex
rel.
N.W.2d 437
Gaynon
(1966).
v.
Krueger,
The
writ
31
of
prohibition also is considered an extraordinary remedy, and is
14
See Daniels v. Woodside, 396 F.3d 730 (6th Cir. 2005); RM
& BC v. Washakie Cnty. Sch. Dist. No. One, 102 P.3d 868 (Wyo.
2004); D.B. v. Clarke Cnty. Bd. of Educ., 469 S.E.2d 438 (Ga.
Ct. App. 1996); Doe v. Superintendent of Sch. of Worcester, 653
N.E.2d 1088 (Mass. 1995); Walter v. Sch. Bd. of Indian River
Cnty., 518 So. 2d 1331 (Fla. Dist. Ct. App. 1987); In Re
Jackson, 352 S.E.2d 449 (N.C. Ct. App. 1987).
29
No.
2009AP2845-W
to be issued only "with great caution and forbearance, for the
furtherance of justice and to secure order and regularity in
judicial
Court
of
(1949)
proceedings."
Milwaukee
(quoting
42
State
Cnty.,
Am.
ex
254
Jur.
rel.
Wis.
Kowaleski
363,
Prohibition,
372,
§ 6)
36
v.
District
N.W.2d
(overruled
419
on
other grounds by State ex rel. Jackson v. Coffey, 18 Wis. 2d
529, 537, 118 N.W.2d 939 (1963).
¶77
In
Dressler
the
court
of
appeals
synthesized
these
various precedents into five factors to be satisfied in granting
a petition for a supervisory writ.15
The court stated:
The petition for a writ of supervision is not a
substitute for an appeal. . . .
The petition for a
supervisory writ will not be issued unless: (1) an
appeal is an utterly inadequate remedy; (2) the duty
of the circuit court is plain; (3) its refusal to act
within the line of such duty or its intent to act in
violation of such duty is clear; (4) the results of
the
circuit
court's
action
must
not
only
be
prejudicial but must involve extraordinary hardship;
and, (5) the request for relief was made promptly and
speedily.
Dressler, 163 Wis. 2d at 630 (internal citations omitted).
15
This test has also been articulated as consisting of four
factors, by combining the third and fourth (i.e., that the duty
of the circuit court is plain and the court has acted or intends
to act in violation of that duty). See State ex rel. Kalal v.
Circuit Court for Dane Cnty., 2004 WI 58, ¶17, 271 Wis. 2d 633,
681 N.W.2d 110; Burnett v. Alt, 224 Wis. 2d 72, 96-97, 589
N.W.2d 21 (1999).
Because the court of appeals referenced the
five-factor test set forth in State ex rel. Dressler v. Circuit
Court for Racine Cnty., 163 Wis. 2d 622, 472 N.W.2d 532 (Ct.
App. 1991), and because there is no substantive difference
between the two articulations of the test, we frame our analysis
in terms of these five criteria.
30
No.
¶78
2009AP2845-W
The circuit court maintains that the court of appeals
erred by treating the District's appeal as a petition for a
supervisory
writ
because
a
provided an adequate remedy.
traditional
appeal
would
have
The circuit court argues that,
because M.T. had already returned to school at the time of the
court of appeals' decision, there was no need for an expedited
proceeding.
¶79
In its initial order, however, the court of appeals'
reasoning did not rest on any need for an expedited proceeding,
but on the nature of the dispute between the District and the
circuit court.
2010,
order,
As Judge Higginbotham observed in his Feb. 17,
"[R]ather
than
claiming
that
the
circuit
court
misapplied the law or erroneously exercised its discretion in
ordering educational services under the facts and circumstances
of this case," the District focused its challenge on the circuit
court's authority to act as it did.
¶80
The District similarly defends the court of appeals'
order by pointing out that any appeal focused on a specific
order related to a specific similarly situated juvenile would
likely be quickly dismissed as moot.
In this instance, M.T. was
already re-enrolled in high school by the time of the appeal.
¶81
We agree with the court of appeals' determination.
If
the District had sought review of the circuit court's order to
provide educational services to M.T., an appeal would have been
the
proper
avenue.
In
a
challenge
to
the
circuit
court's
authority, however, a writ of prohibition was more appropriate
than an appeal for handling the dispute.
31
No.
¶82
2009AP2845-W
Accordingly, we consider whether the five criteria for
a writ of prohibition were met in the instant case.
¶83
The parties do not dispute that the District promptly
sought relief.
This is the fifth factor.
As discussed above,
we agree on the first factor, that an appeal would not have
provided an adequate remedy.
The other three factors are in
dispute.
¶84
The
first
of
the
disputed
circuit court's duty was plain.
factors
is
whether
the
Dressler, 163 Wis. 2d at 630.
The circuit court contends that its duty was not plain, because
it
was
faced
with
a
novel
question
of
harmonization of several statutory provisions.
law
requiring
As we discussed
in the previous section, and as the District has consistently
argued, the circuit court did not have the authority, express or
implied, to order the District to amend its lawful expulsion of
M.T. to provide alternative educational resources.
court's
duty
was
plain:
to
keep
within
the
The circuit
scope
of
its
statutory authority.
¶85
Turning to the next factor, we consider whether the
circuit court clearly intended to act in violation of its duty.16
Id.
Because we have concluded that the circuit court's duty to
16
This language should not be taken to suggest that we view
Judge
Flanagan's
actions
as
a
conscious,
intentional
overstepping of his authority. Although we conclude that he was
without authority to issue the order in this case, the record is
replete with evidence that he took his responsibilities under
the Juvenile Justice Code very seriously and with commendable
consideration.
32
No.
2009AP2845-W
keep within the bounds of its lawful authority was plain, its
violation of that duty was clear when it ordered the District to
provide educational resources to M.T., in direct contradiction
to the District's expulsion order.
The circuit court's reliance
on Wis. Stat. § 938.45 was plain error.
¶86
Finally,
for
the
writ
of
prohibition
to
have
been
proper, there must have been a showing that the circuit court's
action
would
result
in
harm to the District.
589
N.W.2d 21
extraordinary
hardship
or
irreparable
Burnett v. Alt, 224 Wis. 2d 72, 96-97,
(1999).
In
its
order,
the
court
of
appeals
observed that:
While providing educational services in this single
case might not present an extraordinary hardship, the
possibility that the school district might be required
in the future to provide similar educational services
to an undetermined number of expelled students under
the circuit court's interpretation of the relevant
statutes satisfies that criterion.
Madison Metro., No. 2009AP2845-W at 6.
¶87
The
circuit
court
dismisses
this
argument
as
mere
speculation about the possible costs of future similar orders.
As we pointed out in State ex rel. Lynch v. County Court, Branch
III, 82 Wis. 2d 454, 460, 262 N.W.2d 773 (1978), this criterion
cannot
be
satisfied
by
mere
assertions.
It
is
possible,
however, for the harm to be "inherent in the situation," as was
the case in Lynch.
¶88
county
In
court
Lynch,
Id. at 468.
we
were
requiring
the
presented
district
with
an
attorney
order
to
by
the
allow
the
attorneys of seven criminal defendants to review the state's
33
No.
files in search of exculpatory material.
2009AP2845-W
Id. at 458.
The
district attorney, after repeatedly offering to allow the county
court to conduct an in camera review of his files, petitioned
the circuit court for a writ of prohibition.
Id.
Upon review,
we concluded that the writ was proper, because there was no
constitutional or statutory basis for the county judge's order,
and the harm was inherent in the situation.
¶89
was
no
Id. at 468.
In the instant case, we have already held that there
basis
in
law
for
the
circuit
court's
assertion
authority over the District in these circumstances.
of
We hold, as
in Lynch, that the potential extraordinary harm to the District
is inherent in the specter of interference by the courts.
The
District would be faced not only with the costs of any continued
educational services ordered by the circuit court but also the
prospect that such costs would interfere with the District's
performance of its duties in lawfully expelling students who
endanger the health and safety of others.
This hardship is
inherent in the circuit court's actions.
¶90
In
conclusion,
we
find
that
the
court
of
appeals
properly considered the five criteria set forth in Dressler, and
properly exercised its discretion in finding that a supervisory
writ of prohibition was warranted in this case.
IV. CONCLUSION
¶91
In light of the foregoing, we hold that the circuit
court erred when it sought to obtain authority over the District
under Wis. Stat. § 938.45(1)(a).
A school district is not a
"person"
statute,
as
contemplated
in
the
34
and
is
therefore
No.
incapable
of
contributing
to
the
delinquency
2009AP2845-W
of
a
minor.
Additionally, a circuit court may not require a school district
to
provide
expelled
alternative
student
who
educational
is
still
resources
residing
in
to
a
the
lawfully
community.
Finally, because the circuit court exceeded its authority by
ordering the District to provide educational resources to M.T.,
the
writ
of
prohibition
issued
by
the
court
of
appeals
was
proper.
By
the
Court.—The
decision
appeals is affirmed.
35
and
order
of
the
court
of
No.
¶92
N.
PATRICK
CROOKS,
J.
2009AP2845-W.npc
(dissenting).
This
case
presents the question of whether a circuit court has authority,
when exercising its juvenile court jurisdiction1 in a delinquency
proceeding pursuant to Wis. Stat. ch. 938 (2007-08), to order a
school district to submit a plan to provide educational services
to a student expelled by the district pursuant to Wis. Stat.
§ 120.13(1)(c).2
While
the
majority
focuses
on
the
school
district's power to expel a juvenile,3 the scope of a circuit
court's statutory authority when exercising its juvenile court
jurisdiction, pursuant to
Wis.
Stat.
ch.
938,
is
the
proper
focus to resolve this issue.
¶93
In
legislature
enacting
explicitly
the
1996
conveyed
Juvenile
its
Justice
intent
to
Code,4
give
the
circuit
courts ample authority to issue dispositions to effectuate the
Code's purposes, one of which is to "equip juvenile offenders
1
The term "court," as used in the Juvenile Justice Code,
refers to the circuit court "assigned to exercise jurisdiction
under [Wis. Stat. ch. 938]."
Wis. Stat. § 938.02(2m).
Similarly, when I refer to the circuit court in this dissent, I
am referring to the circuit court exercising juvenile court
jurisdiction pursuant to Wis. Stat. ch. 938.
2
All subsequent references to the Wisconsin Statutes are to
the 2007-08 version unless otherwise indicated.
3
In this case, M.T. was the juvenile whom the circuit court
adjudged delinquent.
4
Wis. Stat. ch. 938. The Juvenile Justice Code was enacted
on November 17, 1995, and took effect on July 1, 1996, 1995
Wisconsin Act 77, and was amended thereafter.
1
No.
2009AP2845-W.npc
with competencies to live responsibly and productively."5
includes
the
circuit
court's
authority
to
craft
This
appropriate
dispositional orders from "a myriad of alternatives" to carry
out
a
primary
objective
rehabilitation.6
The
court to
plan for
services
to
a
of
Code
the
explicitly
and organize
juvenile
Juvenile
the
adjudged
Justice
authorizes
provision
the
of
delinquent.7
Code:
circuit
educational
The
Juvenile
Justice Code also puts emphasis on accountability and protection
of the public.8
¶94
the
The
1996
majority diminishes
Juvenile
Justice
Code
the
had
significant
on
a
effect
circuit
that
court's
authority when exercising its juvenile court jurisdiction.
The
majority errs in concluding that "the dispute here boils down to
whether
expulsion
the
legislature
today
does
has
not
modified
mean
the
the
same
as
statutes
it
meant
so
in
that
the
past . . ."——in other words, that the Juvenile Justice Code of
1996 did
not serve to
Majority op., ¶39.
expand
the
circuit
court's
authority.
I take issue with the majority's failure to
recognize that the 1996 Juvenile Justice Code effected a sea
5
Wis. Stat. § 938.01(2). See also Wis. Stat. § 938.355(1)
("The disposition shall employ those means necessary to promote
the objectives under s. 938.01.").
6
State v. Hezzie R.,
N.W.2d 660 (1998).
7
See
938.355(1).
8
Wis.
Stat.
219
§§
Wis. 2d 848,
938.33(1)(e),
See Wis. Stat. § 938.01(2).
2
873,
875-76,
580
938.34(7d)(a)1.;
No.
change
in
circuit
courts'
authority
when
2009AP2845-W.npc
exercising
their
juvenile court jurisdiction.
¶95
The Juvenile Justice Study Committee (JJSC), given the
task of making recommendations to improve the Children's Code,
explained in a letter introducing its report to the governor and
the
legislature
that
the
Juvenile
Justice
Code
would
revolutionize the way that circuit courts deal with juvenile
crime:
The accompanying recommendations will significantly
change the way Wisconsin treats young lawbreakers.
Personal accountability and community protection will
join offender rehabilitation as the primary objectives
of Wisconsin's juvenile justice system.
Such a
balanced approach is the most effective way to respond
to juvenile crime.9
In its report, the JJSC explained that the Juvenile Justice Code
would "[r]eorganize and expand disposition and sanction options
for juvenile courts and caseworkers."10
that
the
"dispositions
categories,"
including
creation
of
be
The JJSC recommended
reorganized
"treatment
and
into
education,"
the
dispositions: . . . [p]articipation
the
following
and
following
in
an
"the
new
educational
program
that is designed to deter future delinquent behavior . . . [and]
[p]articipation in a day treatment program if the juvenile has
specialized educational needs."11
doubt
that
the
1996
Juvenile
The JJSC's report leaves no
Justice
9
Code
has
expanded
Juvenile Justice Study Committee, Juvenile
Wisconsin Blueprint for Change (Jan. 1995).
10
Id. at 16 (emphasis added).
11
Id. at 16-17.
3
the
Justice:
A
No.
circuit
court's
authority
to
develop
a
2009AP2845-W.npc
wide
dispositions to tackle juvenile crime effectively.
range
of
The majority
errs in framing its analysis around a hollow reading of the
Juvenile Justice Code.
¶96
circuit
According to the school district and the majority, the
court's
exercise
of
its
authority
conflicts
with
a
school district's power to expel a student if the circuit court
orders the school district to provide educational services to
such a juvenile.12
convinced
that
the
Even if there is such a conflict, I am
circuit
court's
authority
prevails.
The
school district does have the power to expel a student, but that
power
does
educational
not
relieve
services,
if
it
a
of
its
circuit
obligations
court
orders
to
provide
the
school
district to do so for a juvenile it has adjudged delinquent.13
¶97
In
this
case,
the
Dane
County
Circuit
Court,
the
Honorable David T. Flanagan presiding, exercising its juvenile
court jurisdiction, appropriately used its authority in ordering
the Madison Metropolitan School District (MMSD) to submit a plan
to provide some reasonable educational services to the juvenile
adjudged delinquent, M.T., in whatever manner MMSD determined
was appropriate.
The circuit court did not, in any manner,
modify or set aside MMSD's decision to expel this juvenile.
12
Compare
§ 120.13(1)(c).
Wis.
Stat.
ch.
13
938,
with
Wis.
Stat.
Wis. Stat. §§ 120.12(18), 938.33(1)(e), 938.34(7d)(a)1.,
938.355(1).
4
No.
¶98
Unlike
the
majority,
I
do
not
2009AP2845-W.npc
believe
we
should
diminish the circuit court's authority under the 1996 Juvenile
Justice Code.
clearly
circuit
I would adhere to the Wisconsin Legislature's
expressed
courts
with
appropriate and
delinquent.
intent
in
the
effective
enacting
necessary
dispositions
that
Code
authority
to
provide
fashion
juveniles
for
to
adjudged
I would hold that a circuit court has authority,
when exercising its juvenile court jurisdiction in a delinquency
proceeding,
provide
to
order
educational
a
school
services
district
to
a
to
submit
student
a
plan
to
by
the
harmonizing
the
expelled
district.
¶99
I, therefore, respectfully dissent.
I
¶100 This
case
is
resolved
properly
by
circuit court's authority to create a disposition for a juvenile
adjudged delinquent, pursuant to Wis. Stat. ch. 938, with the
school district's power to expel a juvenile pursuant to Wis.
Stat. § 120.13(1)(c).
court's
authority
Because it is the extent of the circuit
when
exercising
its
juvenile
court
jurisdiction that is being questioned in this case, my focus is
on interpreting the scope of the circuit court's authority.
¶101 When
interpreting
a
statute,
this
court
strives
to
give effect to the legislature's intent, as expressed through
the
statutory
language,
purpose of the statute.
for
Dane
Cnty.,
N.W.2d 110.
2004
WI
including
the
scope,
context,
and
State ex rel. Kalal v. Circuit Court
58,
¶¶44,
48,
271
Wis. 2d 633,
681
"[S]tatutory language is interpreted in the context
5
No.
2009AP2845-W.npc
in which it is used; not in isolation but as part of a whole; in
relation
to
statutes;
the
results."
of
reasonably,
and
language
to
avoid
absurd
This
court
also
Id.,
¶46.
surrounding
or
closely-related
or
unreasonable
strives
"to
give
reasonable effect to every word, in order to avoid surplusage."
Id.
As the relevant provisions of Wis. Stat. ch. 938 deal with
the
same
subject
matter,
this
court
must
interpret
these
provisions in pari materia, "in a manner that harmonizes them in
order to give each full force and effect."
of
Workforce
(1999)
Dev.,
(quoting
227
State
Wis. 2d 271,
v.
Aaron
D.,
McDonough v. Dep't
279-80,
214
595
N.W.2d 686
Wis. 2d 56,
66,
571
N.W.2d 399 (Ct. App. 1997)).
¶102 The
language
of
the
1996
Juvenile
expressly provides its intent and purposes.
began
by
explaining
that
"'[t]he
Juvenile
Justice
Code
The legislature
Justice
Code',
[]
shall be liberally construed in accordance with the objectives
expressed
in
this
section."
Wis.
Stat.
§
938.01(1).
legislature explained the relevant objectives as follows:
It is the intent of the legislature to promote a
juvenile justice system capable of dealing with the
problem of juvenile delinquency, a system which will
protect the community, impose accountability for
violations of law and equip juvenile offenders with
competencies to live responsibly and productively. To
effectuate this intent, the legislature declares the
following to be equally important purposes of this
chapter:
. . .
(c) To provide an individualized assessment of each
alleged and adjudicated delinquent juvenile, in order
to prevent further delinquent behavior through the
development of competency in the juvenile offender, so
6
The
No.
2009AP2845-W.npc
that he or she is more capable of living productively
and responsibly in the community.
. . .
(f) To respond to a juvenile offender's
and treatment, consistent with the
delinquency,
each
juvenile's
best
protection of the public, by allowing
utilize the most effective dispositional
needs for care
prevention of
interest
and
the court to
option.
Wis. Stat. § 938.01(2).
¶103 To
effectuate
these
purposes,
the
legislature
authorized circuit courts to draw upon the resources provided by
other
agencies
dispositional
and
order,
delinquent.
For
designate
an
agency14
adjudged
to
disposition.
be
entities
after
example,
to
to
it
the
has
circuit
submit
delinquent
develop
a
Wis. Stat. § 938.33(1).
appropriate
adjudged
a
court
required
report
before
an
the
is
about
juvenile
the
court
to
juvenile
imposes
a
This report includes,
among other things, "[a] plan for the provision of educational
services to the juvenile, prepared after consultation with the
staff of the school in which the juvenile is enrolled or the
last school in which the juvenile was enrolled."
§ 938.33(1)(e).
Wis. Stat.
As part of their duties, school districts are
required to be involved in providing educational services to
juveniles adjudged delinquent when ordered to do so by a circuit
court
exercising
districts
must
its
juvenile
"[c]oordinate
court
and
14
jurisdiction.
provide
for
School
continuity
of
The agency that is directed to create this report is
defined as "the department, a county department or a licensed
child welfare agency."
Wis. Stat. § 938.38(1)(a).
In this
case, for example, the report was created by the Dane County
Department of Human Services (DCDHS).
7
No.
educational
programming
for
pupils
2009AP2845-W.npc
receiving
educational
services as the result of a court order under s. 48.345 (12) or
938.34 (7d) . . . ."
Wis. Stat. § 120.12(18).
¶104 The legislature has clearly given the circuit court
the
discretion
disposition,
services.
and
the
including
In
tools
ordering
addition
to
to
develop
many
appropriate
provision
the
an
of
educational
other
options
listed
in
the
statute, the circuit court may "order the juvenile to attend any
of
the
including
following:
a
[]
program
A
nonresidential
for
children
at
educational
risk
under
program,
s.
118.153,
provided by the school district in which the juvenile resides."
Wis. Stat. § 938.34(7d)(a)1.
The legislature's directive that
"[t]he disposition shall employ those means necessary to promote
the objectives under s. 938.01" recognizes the breadth of the
circuit court's authority to craft an appropriate dispositional
order for each juvenile adjudged delinquent, in order to fulfill
the
purposes
of
the
Juvenile
Justice
Code.
Wis.
Stat.
§ 938.355(1).
¶105 These provisions, when read together, provide express
statutory
authority
to
a
circuit
court
to
order
a
school
district to create a plan to provide some reasonable educational
services to a juvenile adjudged delinquent, consistent with the
disposition
appropriate.
that
The
the
circuit
1996
court
Juvenile
has
Justice
determined
Code
is
expressly
authorizes a circuit court to order the provision of educational
services as one of the "myriad of alternatives" at the circuit
court's
disposal,
and
providing
8
educational
services
is
No.
consistent
with
the
Code's
rehabilitation of juveniles.
875-76.
objectives,
2009AP2845-W.npc
which
include
Hezzie R., 219 Wis. 2d at 873,
The question is: does a school district's power to
expel a student limit this authority?
I am satisfied that it
does not.
¶106 After one school district expels a student, another
school
district
student.15
may
not
be
required
to
enroll
an
expelled
However, when a circuit court exercising its juvenile
court jurisdiction adjudges that juvenile to be delinquent, Wis.
Stat. ch. 120 envisions that a school district's obligations may
change.
Specifically,
Wis.
Stat.
§ 120.12(18)
obligates
the
school district to "[c]oordinate and provide for continuity of
educational
programming
for
pupils
receiving
educational
services as the result of a court order under s. 48.345 (12) or
938.34 (7d)."
There is no exception from this provision for a
juvenile who has been expelled.
¶107 Where
this
court
is
presented
with
a
potential
conflict between the judicial branch's statutory authority and
the executive branch's attempt to enforce what it believes to be
its statutory powers, this court will appropriately uphold the
judicial
branch's
statutory
authority
separation of powers principles.
applying
constitutional
See, e.g., Racine Cnty. v.
Int'l Ass'n of Machinists and Aerospace Workers Dist. 10, 2008
WI 70, ¶17, 310 Wis. 2d 508, 751 N.W.2d 312.
In Racine County,
a union filed a grievance against Racine County and Kevin Van
15
See Wis. Stat. § 120.13(1)(f) ("No school board is
required to enroll a pupil during the term of his or her
expulsion from another school district.").
9
No.
2009AP2845-W.npc
Kampen (Van Kampen), the Racine County Family Court Commissioner
and the Director of
time,
after
Van
Family
Kampen
Court
entered
Counseling
into
Services
service
contracts
retired employees to fill bargaining unit positions.
4-6.
at the
with
Id., ¶¶2,
The arbitrator assigned to resolve the grievance ruled in
favor
of
violated
the
a
arbitrator
union,
concluding
that
collective
bargaining
agreement.
ordered
Racine
County
to
Van
Kampen's
Id.,
"cease
and
actions
¶7.
The
desist
from
continuing existing Service Agreements or [from] entering into
new
Agreements
which
positions . . . ."
¶108 This
displace[d] . . . bargaining
unit
Id.
court
concluded
that
the
arbitrator,
giving
deference to the executive branch's claimed statutory authority,
exceeded her authority by invading and overriding Van Kampen's
statutory authority as an agent of the judiciary.
17.
Id., ¶¶2-3,
We concluded that the executive branch's exercise of its
claimed
statutory
judicial
branch
authority
authority
"cannot
because
separation of powers principles."
satisfied
that
in
this
case,
trump
doing
so
Id., ¶17.
the
school
such
statutory,
would
violate
Similarly, I am
district's
claimed
statutory authority, as part of the executive branch, does not
trump the circuit court's statutory authority when exercising
its juvenile court jurisdiction.
To rule otherwise would be
violative of separation of powers principles here.
¶109 Therefore,
I
conclude
that
a
circuit
court,
when
exercising its juvenile court jurisdiction, has the statutory
authority to order a school district to provide some type of
10
No.
reasonable
educational
services
to
a
2009AP2845-W.npc
juvenile
adjudged
delinquent, whether or not the school district has expelled that
juvenile.
II
¶110 I am also convinced that, in this case, the circuit
court, exercising its juvenile court jurisdiction, acted within
its
statutory
authority,
and
appropriately
exercised
its
authority and discretion, by ordering MMSD to create a plan to
provide some reasonable educational services to M.T.
¶111 It
is
clear
from
the
record
that
throughout
the
proceedings, the circuit court was concerned about, and focused
on, ensuring that M.T. continue with his education as part of
the disposition that the circuit court imposed.
This began with
the information presented by the Dane County Department of Human
Services
(DCDHS)
delinquency
to
the
circuit
assessment/report
court
(DCDHS's
in
DCDHS's
report).
juvenile
The
report
noted M.T.'s past problems in school, and also his "desire to be
on a basketball team and to get back on track in school."
the
disposition
hearing,
the
circuit
court
stated
that
At
its
primary concern was getting M.T. some educational services on a
regular
basis,
while
he
was
under
the
circuit
court's
supervision.
¶112 The circuit court worked with DCDHS and MMSD in an
attempt to locate some educational services for M.T., but was
unsuccessful.
required
to
The
provide
circuit
M.T.
court
with
noted
that
educational
MMSD
would
services,
if
be
the
circuit court removed him from his home and placed him in the
11
No.
2009AP2845-W.npc
Dane County Juvenile Shelter or in a detention facility such as
the Dane County Juvenile Detention Center.
However, the circuit
court stated that removal from his home was "a drastic step,"
which it concluded was not appropriate in this case.16
conclusion
is
consistent
with
DCDHS's
recommendation
This
in
its
report to the circuit court.
¶113 After considering all of the available options, the
circuit
court
ordered
MMSD
to
submit
"a
plan
to
provide
forthwith educational services, not less than those provided in
the Dane County Juvenile Detention Center, to [M.T.] at whatever
location and in whatever manner the District deems to be safe
and
educationally
appropriate."
The
circuit
court
did
not
review, modify or set aside MMSD's expulsion order, and noted
that it "offer[ed] no criticism of the decision of MMSD to expel
[M.T.] nor [did the circuit court] suggest that the District
lacked a proper, lawful basis to do so."
The circuit court
ordered MMSD to develop its own plan, instead of ordering MMSD
to provide the exact educational services that the circuit court
deemed appropriate.
This measured approach indicates that the
16
Using placement outside of the juvenile's home as a means
to provide educational services, either before or after a
finding of delinquency, is inappropriate for several reasons.
In this case, the record does not show that the circuit court
made any of the findings required in order to hold a juvenile in
physical custody before such a finding of delinquency. See Wis.
Stat. § 938.205.
Additionally, placement in a juvenile
detention facility would not have served to provide educational
services to M.T. for the period of his expulsion because
placement in a detention facility may not be for more than 30
total days after a juvenile is adjudged delinquent. Wis. Stat.
§ 938.34(3)(f).
12
No.
2009AP2845-W.npc
circuit court took MMSD's decision to expel M.T. into account,
and sought to provide MMSD with maximum flexibility to come up
with a plan that would balance the need to provide educational
services with other competing concerns such as safety and cost.
The
circuit
court
appropriately
exercised
its
authority
and
discretion within its statutory authority by ordering MMSD to
develop a plan to provide some reasonable educational services
to M.T.
III
¶114 In coming to a contrary result, the majority fails to
properly harmonize Wis. Stat. ch. 120 with Wis. Stat. ch. 938.
Instead, the majority spends five pages and fourteen paragraphs
concluding
persons,
that
not
Wis.
Stat.
school
§ 938.45
districts.
applies
This
is
only
totally
to
natural
unnecessary
because the circuit court explained in its reply brief to this
court
that
it
"no
longer
claims
Wis.
Stat.
§ 938.45
as
a
significant basis for its authority."
Pet'rs Reply Br. at 7
(some words capitalized in original).
The attorneys for the
circuit court argue that the strongest authorities supporting
the court's position are the relevant portions of Wis. Stat.
§ 120.12(18),
§ 938.34(7d)(a)1.,
§ 938.01(1)-(2),
and
§ 938.355(1)
§ 938.33(1)(e),
discussed
herein.
I
conclude that a proper application of these statutory sections
provides the circuit court with clear authority.
See supra ¶¶9-
18.
¶115 The majority spends much of its analysis on whether,
under
Wis.
Stat.
ch.
120,
a
school
13
district
is
required
to
No.
provide
educational
services
to
an
expelled
2009AP2845-W.npc
student.
I
am
satisfied that pursuant to Wis. Stat. ch. 120 a school district
is not required to provide educational services to all expelled
students, but there is nothing in that chapter, Wis. Stat. ch.
938,
or
in
this
court's
precedent
that
abrogates
a
circuit
court's authority under Wis. Stat. ch. 938 and Wis. Stat. ch.
120, to order a school district to provide such services to a
particular
juvenile
adjudged
delinquent.
The
majority
treats
the school district's power to expel students as an unqualified
power that, once exercised, relieves it of any other obligations
regarding that juvenile.
Wisconsin Stat. § 120.13(1)(c) cannot
be read so broadly, nor should the circuit court's authority
under the 1996 Juvenile Justice Code be read so narrowly.
¶116 The majority also relies on an error in logic to reach
its conclusion that a school district's power to expel is an
unlimited power that allows it to refuse to provide educational
services
to
otherwise.
such
a
juvenile
unless
and
until
it
decides
For this bold proposition the majority quotes Wis.
Stat. § 120.13, a previous version of this statute, and State ex
rel. Dresser v. District Board of School District No. 1, 135
Wis. 619, 116 N.W. 232 (1908).
was
decided
well
before
the
The premise in Dresser, which
effective
date
of
the
Juvenile
Justice Code in 1996, was that a circuit court could not order a
school
district
to
school
district
abused
students.
reinstate
Id. at 627-28.
its
suspended
discretion
students
in
unless
suspending
the
those
It had nothing to do with a circuit
court's authority to require the provision of some reasonable
14
No.
2009AP2845-W.npc
educational services, outside of school premises, to an expelled
student who has
been adjudged
inapplicable
this
reverse
or
in
modify
case,
delinquent.
where
MMSD's
the
Thus,
circuit
expulsion
Dresser
court
order,
but
did
is
not
rather
appropriately exercised its authority and discretion to order
MMSD
to
create
a
plan
to
educational services.
provide
M.T.
with
some
reasonable
The 1996 Juvenile Justice Code clearly
provides circuit courts exercising juvenile court jurisdiction
with extensive additional powers and authority which such courts
did not have in 1908.
IV
¶117 While I believe it is important to address the scope
of the circuit court's authority when exercising its juvenile
court jurisdiction, it was, I am satisfied, inappropriate for
the court of appeals to issue a writ of prohibition here, a type
of supervisory writ.
See State ex rel. Dressler v. Circuit
Court for Racine Cnty., 163 Wis. 2d 622, 630, 472 N.W.2d 532
(Ct.
App.
1991).
"A
supervisory
writ
'is
considered
an
extraordinary and drastic remedy that is to be issued only upon
some grievous exigency.'"
Kalal, 271 Wis. 2d 633, ¶17 (quoting
Dressler, 163 Wis. 2d at 630).
To obtain a supervisory writ, a
petitioner must establish that:
(1) an appeal is an inadequate remedy; (2) grave
hardship or irreparable harm will result; (3) the duty
of the trial court is plain and it must have acted or
intends to act in violation of that duty; and (4) the
request for relief is made promptly and speedily.
Id., ¶17 (quoting Burnett v. Alt, 224 Wis.2d 72, 96-97, 589
N.W.2d 21 (1999)).
At least three of these requirements appear
15
No.
not to
be met in this case,
since
an
appeal
2009AP2845-W.npc
would
seem to
provide an adequate remedy to resolve this issue, grave hardship
or irreparable harm would not result, and the circuit court's
duty was definitely not plain nor was such duty being or about
to be clearly violated.
¶118 In its decision to issue a writ of prohibition, the
court of appeals stated simply that "the issues raised by this
appeal
can
appeal."
be
more
appropriately
handled
by
writ
than
by
Madison Metro. Sch. Dist. v. Circuit Court for Dane
Cnty., No. 2009AP2845-W, unpublished order at 6 (Wis. Ct. App.
June 30, 2010).
If the circuit court's decision regarding M.T.
was taken as an appeal but was moot by that time, the court of
appeals still could have addressed this significant legal issue
regarding the scope of the circuit court's authority.
The issue
is of great public importance, it would likely recur yet evade
review, and its resolution is necessary to guide circuit courts.
State v. Jeremiah C., 2003 WI App 40, ¶10, 260 Wis. 2d 359, 659
N.W.2d 193.
¶119 There has also not been a showing what grave hardship
or
irreparable
decision.
In
harm
its
would
result
conclusion
to
from
the
the
circuit
contrary,
the
court's
court
of
appeals stated that "[w]hile providing educational services in
this single case might not present an extraordinary hardship,
the possibility that the school district might be required in
the
future
undetermined
to
provide
number
of
similar
educational
expelled
students
services
under
the
to
an
circuit
court's interpretation of the relevant statutes satisfies that
16
No.
criterion."
2009AP2845-W.npc
Madison Metro. Sch. Dist., No. 2009AP2845-W, at 6
(emphasis added).
The majority concludes that "the potential
extraordinary harm to the District is inherent in the specter of
interference by the courts."
Majority op., ¶89.
I conclude
that neither the court of appeals' speculation regarding the
impact
of
the
circuit
court's
decision,
nor
the
majority's
speculation about court interference satisfies the requirement
of a showing of "grave hardship or irreparable harm"——a high
hurdle.
See Kalal, 271 Wis. 2d 633, ¶17 (quoting Burnett, 224
Wis.2d at 96-97).
¶120 Even
certainly
not
more
compelling:
plain,
and
the
the
circuit
circuit
court's
court
did
violate nor was it about to violate that duty.
duty
not
was
clearly
The majority
greatly oversimplifies the plain duty requirement in its summary
conclusion that "[t]he circuit court's duty was plain: to keep
within the scope of its statutory authority."
¶84.
Majority op.,
Obviously the circuit court must act within its authority.
I am satisfied based on the statutory provisions at issue that
that is what the circuit court did here.
authority
for its position.
We
have
The majority lacks
rejected
previously an
expansive interpretation of the plain duty requirement similar
to that advanced by the majority here, concluding that it "would
transform
the
writ
into
appellate review process."
an
all-purpose
alternative
to
the
Kalal, 271 Wis. 2d 633, ¶24.
V
¶121 This case presents the question of whether a circuit
court
has
authority,
when
exercising
17
its
juvenile
court
No.
2009AP2845-W.npc
jurisdiction in a delinquency proceeding pursuant to Wis. Stat.
ch. 938, to order a school district to submit a plan to provide
educational
pursuant
to
services
Wis.
to
a
Stat.
student
expelled
the
district
While
§ 120.13(1)(c).
by
the
majority
focuses on the school district's power to expel a juvenile, the
scope of a circuit court's statutory authority when exercising
its juvenile court jurisdiction, pursuant to Wis. Stat. ch. 938,
is the proper focus to resolve this issue.
¶122 In
legislature
enacting
the
explicitly
1996
conveyed
Juvenile
its
Justice
intent
to
Code,
give
the
circuit
courts ample authority to issue dispositions to effectuate the
Code's purposes, one of which is to "equip juvenile offenders
with competencies to live responsibly and productively."17
includes
the
circuit
court's
authority
to
craft
This
appropriate
dispositional orders from "a myriad of alternatives" to carry
out
a
primary
objective
rehabilitation.18
The
of
Code
the
explicitly
court to plan
for and organize
services
juvenile
to
a
Juvenile
adjudged
the
Justice
authorizes
provision
delinquent.19
the
of
Code:
circuit
educational
The
Juvenile
Justice Code also puts emphasis on accountability and protection
of the public.20
17
Wis. Stat. § 938.01(2). See also Wis. Stat. § 938.355(1)
("The disposition shall employ those means necessary to promote
the objectives under s. 938.01.").
18
19
Hezzie R., 219 Wis. 2d at 873, 875-76.
See
938.355(1).
20
Wis.
Stat.
§§
938.33(1)(e),
See Wis. Stat. § 938.01(2).
18
938.34(7d)(a)1.;
No.
¶123 The majority
the
1996
Juvenile
diminishes
Justice
Code
the
had
2009AP2845-W.npc
significant
on
a
effect
circuit
that
court's
authority when exercising its juvenile court jurisdiction.
The
majority errs in concluding that "the dispute here boils down to
whether
the
expulsion
legislature
today
does
not
has
modified
mean
the
the
same
as
statutes
it
so
meant
that
in
the
past . . ."——in other words, that the Juvenile Justice Code of
1996 did not
serve
Majority op., ¶39.
to expand
the
circuit
court's
authority.
I take issue with the majority's failure to
recognize that the 1996 Juvenile Justice Code effected a sea
change
in
circuit
courts'
authority
when
exercising
their
juvenile court jurisdiction.
¶124 The Juvenile Justice Study Committee (JJSC), given the
task of making recommendations to improve the Children's Code,
explained in a letter introducing its report to the governor and
the
legislature
that
the
Juvenile
Justice
Code
would
revolutionize the way that circuit courts deal with juvenile
crime:
The accompanying recommendations will significantly
change the way Wisconsin treats young lawbreakers.
Personal accountability and community protection will
join offender rehabilitation as the primary objectives
of Wisconsin's juvenile justice system.
Such a
balanced approach is the most effective way to respond
to juvenile crime.21
In its report, the JJSC explained that the Juvenile Justice Code
would "[r]eorganize and expand disposition and sanction options
21
Juvenile Justice Study Committee, Juvenile
Wisconsin Blueprint for Change (Jan. 1995).
19
Justice:
A
No.
for juvenile courts and caseworkers."22
that
the
"dispositions
categories,"
including
creation
be
of
The JJSC recommended
reorganized
"treatment
2009AP2845-W.npc
and
into
the
education,"
the
following
and
"the
following
dispositions: . . . [p]articipation
in
an
new
educational
program
that is designed to deter future delinquent behavior . . . [and]
[p]articipation in a day treatment program if the juvenile has
specialized educational needs."23
doubt
that
circuit
the
1996
court's
Juvenile
authority
The JJSC's report leaves no
Justice
to
Code
develop
has
a
expanded
wide
dispositions to tackle juvenile crime effectively.
the
range
of
The majority
errs in framing its analysis around a hollow reading of the
Juvenile Justice Code.
¶125 According to the school district and the majority, the
circuit
court's
exercise
of
its
authority
conflicts
with
a
school district's power to expel a student if the circuit court
orders the school district to provide educational services to
such a juvenile.24
convinced
that
the
Even if there is such a conflict, I am
circuit
court's
authority
prevails.
The
school district does have the power to expel a student, but that
power
does
not
relieve
it
of
22
obligations
to
provide
Id. at 16 (emphasis added).
23
its
Id. at 16-17.
24
Compare
§ 120.13(1)(c).
Wis.
Stat.
ch.
20
938,
with
Wis.
Stat.
No.
educational
services,
if
a
circuit
court
2009AP2845-W.npc
orders
the
school
district to do so for a juvenile it has adjudged delinquent.25
¶126 In
this
case,
the
Dane
County
Circuit
Court,
the
Honorable David T. Flanagan presiding, exercising its juvenile
court jurisdiction, appropriately used its authority in ordering
the Madison Metropolitan School District (MMSD) to submit a plan
to provide some reasonable educational services to the juvenile
adjudged delinquent, M.T., in whatever manner MMSD determined
was appropriate.
The circuit court did not, in any manner,
modify or set aside MMSD's decision to expel this juvenile.
¶127 Unlike
the
majority,
I
do
not
believe
we
should
diminish the circuit court's authority under the 1996 Juvenile
Justice Code.
clearly
circuit
I would adhere to the Wisconsin Legislature's
expressed
courts
appropriate and
delinquent.
intent
with
in
the
effective
enacting
that
necessary
Code
authority
dispositions
for
to
provide
to
fashion
juveniles
adjudged
I would hold that a circuit court has authority,
when exercising its juvenile court jurisdiction in a delinquency
proceeding,
provide
to
order
educational
a
school
services
district
to
a
to
submit
student
a
expelled
plan
to
by
the
district.
¶128 For
the
reasons
set
forth
herein,
I
respectfully
dissent.
¶129 I am authorized to state that Chief Justice SHIRLEY S.
ABRAHAMSON and Justice ANN WALSH BRADLEY join this dissent.
25
Wis. Stat. §§ 120.12(18), 938.33(1)(e), 938.34(7d)(a)1.,
938.355(1).
21
No.
22
2009AP2845-W.npc
No.
1
2009AP2845-W.npc
]]>
