State v. Lindsey A.F.
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2003 WI 63 SUPREME COURT CASE NO.: OF WISCONSIN 01-0081 & 01-0082 COMPLETE TITLE: In the Interest of Lindsey A.F., a Person Under the Age of 17: State of Wisconsin, Petitioner-Appellant-Petitioner, v. Lindsey A.F., Respondent-Respondent. REVIEW OF A DECISION OF THE COURT OF APPEALS 2002 WI App 223 Reported at: 257 Wis. 2d 650, 653 N.W.2d 116 (Ct. App. 2002-Published) OPINION FILED: SUBMITTED ON BRIEFS: ORAL ARGUMENT: March 4, 2003 SOURCE OF APPEAL: COURT: COUNTY: JUDGE: Circuit Dane Michael N. Nowakowski June 20, 2003 JUSTICES: CONCURRED: DISSENTED: NOT PARTICIPATING: ATTORNEYS: For the petitioner-appellant-petitioner there were briefs by Susan M. Crawford, assistant attorney general, and James E. Doyle, attorney general, and oral argument by Sally L. Wellman, assistant attorney general. For the respondent-respondent there was a brief and oral argument by Eileen A. Hirsch, assistant state public defender. 2003 WI 63 NOTICE This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports. No. 01-0081 & 01-0082 (L.C. No. 00 JV 617) STATE OF WISCONSIN : IN SUPREME COURT In the Interest of Lindsey A.F., a person Under the Age of 17: FILED State of Wisconsin, Petitioner-Appellant-Petitioner, v. JUN 20, 2003 Cornelia G. Clark Clerk of Supreme Court Lindsey A.F., Respondent-Respondent. REVIEW of a decision of the Court of Appeals. ¶1 ANN WALSH BRADLEY, J. The Affirmed. petitioner, State of Wisconsin, seeks review of a published court of appeals decision that affirmed two orders of the circuit delinquency petitions against Lindsey A.F.1 court, dismissing The State asserts that because the juvenile was not in custody, the circuit court lacked authority to dismiss the first petition and refer the matter for deferred prosecution. 1 Further, the State argues that State v. Lindsey A.F., 2002 WI App 223, 257 Wis. 2d 650, 653 N.W.2d 116 (affirming orders of the circuit court for Dane County, Michael N. Nowakowski, Judge). No. 01-0081 & 01-0082 even if the circuit court had such authority, it erred when it concluded that the district attorney could not terminate the court ordered deferred prosecution by the filing of a second petition. ¶2 We determine that under Wis. Stat. § 938.21(7) (1999-2000),2 a circuit court has authority to dismiss a juvenile delinquency petition and refer the matter for deferred prosecution regardless of whether the juvenile is in custody. Additionally, terminate second a we conclude court ordered delinquency factual basis. that a district deferred petition attorney prosecution containing the by same cannot filing charge a and Accordingly, we affirm the court of appeals. I ¶3 school. Lindsey A.F., age 13, sold marijuana while in a middle Her case was referred to an intake worker, who subsequently referred the case to the district attorney with a recommendation that the district attorney petition and enter into a consent decree. filed a delinquency petition but did file a delinquency The district attorney not pursue a consent decree. ¶4 Apparently dissatisfied with the district attorney's failure to request a consent decree, Lindsey filed a motion to dismiss the petition. She requested that the court refer her 2 All subsequent references to the Wisconsin Statutes are to the 1999-2000 version unless otherwise indicated. 2 No. 01-0081 & 01-0082 case back to the intake worker for deferred prosecution. Over the State's objection, the circuit court granted the motion, dismissed the petition, and referred the matter for deferred prosecution. Lindsey, her mother, and the intake worker then entered into a deferred prosecution agreement. ¶5 In agreement, an effort State the to terminate filed a the second deferred prosecution delinquency petition containing the same charge and factual allegations as set forth in the first petition. arguing that petition the and Lindsey again filed a motion to dismiss, second petition that no new was information the existed re-filing of an already dismissed petition. and concluded authority to that the terminate filing another petition. district the attorney deferred same as to the first justify the The court agreed did prosecution not have agreement the by Accordingly, it dismissed the second petition. ¶6 The court of appeals affirmed the dismissal of the two petitions. It examined the relevant statutes and determined that the district attorney's consent was not required for the circuit court to dismiss the delinquency petitions and refer the 3 No. matter for deferred prosecution.3 01-0081 & 01-0082 State v. Lindsey A.F., 2002 WI App 223, ¶13, 257 Wis. 2d 650, 653 N.W.2d 116. It further concluded that the district attorney did not have the authority to terminate the resulting deferred prosecution agreement filing a new petition with the same charges and facts. by Id. II ¶7 This case provides us with an opportunity to review the authority of the circuit court and the district attorney under Wisconsin's Juvenile Justice Code.4 Specifically, we examine whether a juvenile must first be in custody in order for the circuit court to have authority under Wis. Stat. § 938.21(7) to dismiss a delinquency petition and refer the matter to the intake worker for deferred prosecution. If it has such authority, we must then consider whether the district attorney has the authority under § 938.245(6) to terminate the resulting deferred prosecution agreement by filing a second delinquency 3 Although we are affirming the court of appeals decision, we note that there is a difference in rationale. This difference occurs because in the court of appeals the State argued that the circuit court lacked authority to dismiss-and-refer under Wis. Stat. § 938.21(7) without the district attorney's consent. However, before this court, the State changed its argument and primarily asserts that the circuit court's authority to dismiss-and-refer under Wis. Stat. § 938.21(7) applies only to petitions filed against juveniles in custody and only at the time of the custody review hearing. 4 Wisconsin Stat. ch. 938. 4 No. 01-0081 & 01-0082 petition which contains the same charge and factual allegations as the first petition.5 ¶8 statutory The resolution of each of these issues is a matter of interpretation which presents subject to independent appellate review. Wis. 2d statutory 397, 405-06, 565 interpretation legislature. Id. at 406. N.W.2d is to 506 a question of law State v. Setagord, 211 (1997). discern the The intent goal of of the Here, in examining the intent of the legislature, we look first to the language of the statute, and then consider other aids such as the legislative history, context, and purpose to assist in ascertaining the legislature's intent. III ¶9 the We begin by examining Wis. Stat. § 938.21(7), which circuit court cited as the 5 basis for its authority to We decide the issues presented even though the case is moot. While the appeal was pending in the court of appeals, Lindsey A.F. violated the terms of the deferred prosecution agreement and the case was returned to court for prosecution. Thus, this decision will have no practical effect on Lindsey A.F.'s case. As a general rule, this court will not consider an issue which will not have any practical effect upon an existing controversy. State v. Leitner, 2002 WI 77, ¶13, 253 Wis. 2d 449, 646 N.W.2d 341 (citing State ex rel. La Crosse Tribune v. Circuit Court for La Crosse Co., 15 Wis. 2d 220, 228, 340 N.W.2d 460 (1983)). However, moot cases may be decided in a variety of circumstances, including where the issues are of great public importance or should be resolved to avoid future uncertainty. Leitner, 253 Wis. 2d 449, ¶14. This case falls within these exceptions to the general mootness rule, and thus, we reach the merits of the present case. 5 No. dismiss the delinquency deferred prosecution.6 petitions and refer 01-0081 & 01-0082 the matter for Wisconsin Stat. § 938.21(7) provides: (7) Deferred prosecution. If the judge or juvenile court commissioner determines that the best interests of the juvenile and the public are served, he or she may enter a consent decree under s. 938.32 or order the petition dismissed and refer the matter to the intake worker for deferred prosecution in accordance with s. 938.245. ¶10 The State argues that this provision could not serve as the basis for dismissing the petitions because it applies only to petitions filed against juveniles in custody and only at the time of the custody review hearing under Wis. Stat. § 938.21(1), which describes the hearing required for a juvenile held in custody. Lindsey was not in custody at the time the petitions were filed and the judicial proceedings that resulted in the dismissals § 938.21(1). could not were Therefore, be relied not custody according upon as review to the hearings the State, source of under § 938.21(7) authority in interpretation of dismissing the petitions. ¶11 We disagree with the State's § 938.21(7) as limited to petitions filed while the juvenile is in custody and then only at the time of the custody review hearing. The statutory language 6 in the subsection and the Wisconsin Stat. § 938.21(7) refers to the ability of a court to order a "petition" dismissed. The present case arises in the context of a delinquency petition. Thus, the holding is confined to the applicability of § 938.21(7) to delinquency petitions. 6 No. legislative history do not support this 01-0081 & 01-0082 interpretation. Further, the existence of such a limitation would lead to an anomalous result. ¶12 Nothing in the language of § 938.21(7) indicates that it is limited to situations in which the child is in custody. It simply states that if the judge determines that the best interests of the juvenile and the public are served, the judge may order the petition dismissed and refer the matter to the intake worker for deferred prosecution. Nowhere in this subsection is there a statement that the judge may do this only if the child is in custody and only at the time of the custody review hearing. ¶13 The State emphasizes the placement of § 938.21(7) as supporting its interpretation. The State notes that § 938.21(7) is within a section titled "Hearing for juvenile in custody" and that the hearings remainder and custody. the of other the section procedures for deals exclusively juveniles who are with held in The State argues that, when viewed in this context, authority to dismiss and refer should apply only to juveniles in custody. ¶14 A section title is not part of the statute. Stat. § 990.001. Wis. While titles may be considered in resolving doubt as to a statute's meaning, they should not be used to create a doubt where none would otherwise exist. Wisconsin Valley Imp. Co. v. Public Serv. Comm., 9 Wis. 2d 606, 618, 101 N.W.2d 798 (1960); Brennan v. WERC, 112 Wis. 2d 38, 41, 331 N.W.2d 667 (Ct. App. 1983). Nevertheless, 7 the placement of No. 01-0081 & 01-0082 § 938.21(7) within a section that primarily deals with hearings and other raises a procedures question similarly limited. for juveniles regarding who whether are it held was in intended custody to be Thus, § 938.21(7) is rendered ambiguous as to whether it is limited to custody situations. ¶15 We conclude, however, that the legislature did not intend such a limitation, which is a position that the State did not dispute in its court of appeals brief. In that brief, the State acknowledged that the placement of § 938.21(7) and its interaction with other statutes did not necessarily mean that the court's authority is limited: [T]he State is not necessarily arguing that Sec. 938.21(7) is meant to apply only to juveniles held in custody. Rather, the State maintains that the legislature placed this particular subsection where it did for a specific reason, i.e. to authorize and promote the prompt resolution of juvenile cases at the earliest opportunity. ¶16 A review of the legislative history indicates that the State had it right in its court of appeals brief. language in § 938.21(7) can be traced back to The current language that existed in the 1975 version of the Children's Code, Chapter 48 of the Wisconsin Statutes. Wisconsin Stat. § 48.19 (1975) provided: 48.19. Informal Disposition. . . . if [the court] determines that neither the interests of the child nor of the public require that a petition be filed, [the court] may defer further proceedings on the condition that the child appear with his parent, guardian or legal custodian for counseling and advice or that the child abide by such obligations imposed upon him with respect to his future conduct as the court deems 8 No. 01-0081 & 01-0082 necessary or advisable to insure the child's protection, correction or rehabilitation. . . . This provision gave the judge clear authority to order the informal disposition of a juvenile's case as an alternative to adjudication of a delinquency petition. ¶17 As part of revisions made in 1977, the authority to initiate a petition in delinquency cases was assigned to the district attorney. However, the court's authority to order an informal disposition was not repealed. Rather, it was moved from Wis. Stat. § 48.19 (1975) to Wis. Stat. § 48.21(7) (1977): (7) Informal disposition. If the judge or juvenile court commissioner determines that the best interests of the child and the public are served, he or she may enter a consent decree under s. 48.32 or order the petition dismissed and refer the matter to the intake worker for informal disposition in accordance with s. 48.245. ¶18 Although the language had been modified, Wis. Stat. § 48.21(7) (1977) clearly had its roots in Wis. Stat. § 48.19 (1975). Both are entitled "Informal Disposition." same criteria. Both use the Under Wis. Stat. § 48.19 (1975), the criteria is whether the court "determines that neither the interests of the child nor of the public require that a petition be filed." The criteria in Wis. Stat. § 48.21(7) (1977) is whether the court "determines that the best interests of the child and the public are served." juvenile's Finally, both address the same issue, whether a case should be handled informally rather than requiring an adjudication on the petition. ¶19 We note that Wis. Stat. § 48.21(7) (1977) was placed within a section, Wis. Stat. § 48.21 (1977), titled "Hearing for 9 No. 01-0081 & 01-0082 child in custody," similar to the placement of the current Wis. Stat. § 938.21(7). Lindsey advances an explanation for this placement of the informal disposition provision: Wis. Stat. § 48.21 (1977) was the first place where the judge made any decisions in the process. the dispositional options Accordingly, it made sense to have described in Wis. Stat. § 48.21(7) placed there, even though they would be applicable throughout the process. The State acknowledged as much in its court of appeals brief when it stated that "the State maintains that the legislature placed this particular subsection where it did for a specific reason, i.e. to authorize and promote the prompt resolution of juvenile cases at the earliest opportunity." ¶20 We also note generate an anomalous that the result. State's A interpretation juvenile that is would held in custody usually poses a more serious threat to public safety than a juvenile who has not been placed in custody. Presumably, dismissal and referral for deferred prosecution is more likely to be appropriate in those cases in which the juvenile is not a serious threat to public safety. However, under the State's interpretation, the court has authority to dismiss-and-refer in the serious cases where dismissal and referral is less likely to be appropriate, but the circuit court does not have authority to dismiss-and-refer in the less serious cases where it is more likely to be appropriate. ¶21 The State argues that this anomalous result can be explained. It notes that the time frame for filing a petition is significantly shorter when a juvenile is held in custody. 10 No. 01-0081 & 01-0082 Wisconsin Stat. § 938.21(1) generally requires that a petition be filed and a hearing held within 24 hours after the end of the day that the decision to hold the juvenile in custody was made, excluding Saturdays, Sundays, and legal holidays.7 the intake worker and the district attorney As a result, operate under significant time constraints in conducting an inquiry prior to the filing of a petition. State, it makes sense In such cases, according to the to permit the circuit court to dismiss-and-refer in order to allow the intake worker to conduct a more thorough inquiry. ¶22 However, given that the hearing is held within 24 hours of the custody decision, it is unlikely that the court will have any information that the intake worker and the district attorney did not have when the petition was drafted. Accordingly, it seems odd that the authorization to dismiss-and-refer would apply only to situations in which the circuit court has limited information. permit a circuit dismiss-and-refer 7 court until after It seems more logical to to delay a further its decision investigation to takes Wisconsin Stat. § 938.21 provides, in relevant part: (1) Hearing; when held. (a) If a juvenile who has been taken into custody is not released under s. 938.20, a hearing to determine whether the juvenile shall continue to be held in custody under the criteria of ss. 938.205 to 938.209 (1) shall be conducted by the judge or juvenile court commissioner within 24 hours after the end of the day that the decision to hold the juvenile was made, excluding Saturdays, Sundays and legal holidays. 11 No. place. 01-0081 & 01-0082 However, under the State's interpretation, the court may exercise the authority to dismiss-and-refer only at the custody hearing and may not delay its decision until it has the results of a further investigation. ¶23 Finally, we observe that an enumerated purpose of the Juvenile Justice Code is to provide an individualized assessment of each alleged delinquent juvenile "in order to prevent further delinquent behavior through the development of competency in the juvenile offender so that he or she is more capable of living productively and responsibly in the community." Our interpretation of § 938.21(7) ensures that the circuit judge has adequate authority to advance this purpose. this purpose § 938.21(7) is reflected which directs in the the The importance of criteria judge to set consider forth the in "best interests of the juvenile and the public" in determining whether to dismiss-and-refer. ¶24 In State v. Hezzie R., 219 Wis. 2d 848, 873, 580 N.W.2d 660 (1998), we explained that "the legislature did not lose sight of the fact that the [Juvenile Justice Code] provisions are distinct from the criminal code provisions, and that the rehabilitation of juveniles is a primary objective." In describing the substantive provisions that show the differences between the criminal code and the Juvenile Justice Code, the court noted that one of these differences is the circuit court's ability to dismiss-and-refer when it is in the best interests of the juvenile and the public: 12 No. 01-0081 & 01-0082 [I]n accord with Wis. Stat. § 938.21(7), a judge or juvenile court commissioner has the discretion to dismiss a petition and refer a juvenile's case to a social worker for deferred prosecution, if it is "in the best interests of the juvenile and the public." Id. at 874. ¶25 Therefore, based on our examination of the statutory language, the legislative history, context, and purpose, we determine that the legislature did not intend the interpretation advanced by the State. intended that a Rather, we conclude that the legislature court would have the authority to dismiss-and-refer under § 938.21(7) even when the juvenile is not in custody. IV ¶26 We turn now to the district attorney's authority under Wis. Stat. § 938.245(6) to terminate the deferred prosecution agreement by filing the second delinquency petition. Wisconsin Stat. § 938.245(6) provides in relevant part: (6) A deferred prosecution agreement arising out of an alleged delinquent act is terminated if the district attorney files a delinquency petition within 20 days after receipt of notice of the deferred prosecution agreement under s. 938.24(5). . . . The State argues delinquency district petition attorney prosecution that the from agreement court's § 938.21(7) under circuit does terminating by filing dismissal not of preclude a the the subsequent deferred another delinquency petition pursuant to § 938.245(6). ¶27 We disagree with the State's interpretation of § 938.245(6) as allowing the district attorney to terminate the 13 No. deferred prosecution agreement in this 01-0081 & 01-0082 case. Such an interpretation misreads the scope of the notice requirement in Wis. Stat. § 938.24(5) and eviscerates the authority explicitly granted to the court by § 938.21(7). ¶28 As highlighted by the particular facts of this case, the State's interpretation creates an odd framework in which the district attorney can nullify a decision of the circuit court to exercise its authority under § 938.21(7) to dismiss a petition and refer the matter for deferred prosecution. In this case, the circuit court, over the State's objection, dismissed the initial delinquency Lindsey and deferred petition referred the worker prosecution. then that matter Lindsey, entered into a the to her State the filed intake mother, deferred against worker and prosecution the for intake agreement. Dissatisfied with this result, the district attorney attempted to terminate the deferred prosecution agreement and continue to seek a delinquency adjudication. It did so by filing a second petition containing the same charge and factual basis. ¶29 This result is seemingly at odds with the dismissal authority granted to the court in § 938.21(7). Nevertheless, the State argues that the interaction of the relevant statutes supports this result. after a court In particular, the State argues that, exercises its authority under § 938.21(7) to dismiss-and-refer, § 938.24(5) requires that the intake worker provide written notice to the district attorney when the parties enter into the deferred prosecution agreement. State, this notice in turn triggers 14 the According to the authority of the No. district attorney to terminate the 01-0081 & 01-0082 deferred prosecution agreement under § 938.245(6). ¶30 However, the process leading to the notice required by § 938.24(5) is the initial intake procedures governed by Wis. Stat. § 938.24. A brief discussion of the underlying statutory framework intake for and referral provides context for evaluating the State's argument. ¶31 which a Wisconsin case. district Stat. § 938.24 attorney sets receives forth notice the of process the by juvenile's Pursuant to this process, the intake worker performs an inquiry after which the intake worker may request that a petition be filed, enter into a deferred prosecution agreement, or close the case. If the intake worker enters into a deferred prosecution agreement, § 938.24(5) requires that notification be sent to the district attorney. 20 days from authority the under receipt of A district attorney then has such § 938.245(6) to notice to terminate exercise the its deferred prosecution agreement. ¶32 Section 938.245(6) is not a blanket grant of authority empowering a district prosecution agreement. authority to terminate a deferred Rather, the authority is triggered by receipt of the § 938.24(5) notice. However, as noted above, a § 938.24(5) notice is a part of the initial intake procedures, not a part of a court ordered deferred prosecution. ¶33 When a court orders deferred prosecution § 938.21(7), there is no statutory notice requirement. under Unlike the notice requirement set forth in § 938.24(5) which triggers 15 No. termination authority under § 938.245(6), here 01-0081 & 01-0082 there is required notice to provide the necessary triggering event. no The fact that the termination authority under § 938.245(6) is tied to and triggered by an intake worker notice is not unique. An intake worker notice is also required to trigger the district attorney's termination authority under § 938.245(7) which addresses noncompliance with a deferred prosecution agreement.8 ¶34 Accordingly, we agree with the court of appeals that while § 938.245(6) authorizes a district attorney to override a determination made by an intake worker within 20 days after receipt of notice, it does not authorize a district attorney to override a determination made by the circuit court. A.F., 257 Wis. 2d 650, ¶¶13, 16. Lindsey Based on a proper reading of the notice requirement of § 938.24(5), the scope of the district attorney's ability to terminate a deferred prosecution agreement under § 938.245(6), and the authority granted to judges under § 938.21(7), we conclude that the district attorney did not have 8 Wisconsin Stat. § 938.245(7)(a) provides in relevant part: (a) If at any time during the period of a deferred prosecution agreement the intake worker determines that the obligations imposed under it are not being met, the intake worker may cancel the deferred prosecution agreement. Within 10 days after the cancellation of the deferred prosecution agreement, the intake worker shall notify the district attorney, corporation counsel or other official under s. 938.09 of the cancellation and request that a petition be filed. In delinquency cases, the district attorney may initiate a petition within 20 days after the date of the notice regardless of whether the intake worker has requested that a petition be filed. 16 No. 01-0081 & 01-0082 the authority to terminate the deferred prosecution agreement in this case. ¶35 In sum, we determine that under Wis. Stat. § 938.21(7), the circuit court had the authority to dismiss the delinquency prosecution. petitions and refer the matter for deferred We further conclude that the district attorney cannot terminate the resulting deferred prosecution agreement by filing a second delinquency petition containing the same charge and factual basis. By the Accordingly, we affirm. Court. The decision affirmed. 17 of the court of appeals is No. 1 01-0081 & 01-0082
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