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Juvenile Delinquency — Alternatives to Disposition

State v. Andrew J.K., 2006 WI App 126

For Andrew J.K.: George M. Tauscheck

Issue/Holding: Where a juvenile, in response to a State’s motion to lift a stay on corrections commitment, stipulated to placement in a local program, his subsequent termination from that program subjected him to a lifting of the stay notwithstanding that the program was not a statutorily authorized dispositional alternative:

¶18      Although the court approved the stipulation, the court never ordered Andrew to enter the ACE Program. The court did not grant the adjournment on the condition that Andrew enter the ACE Program. The court determined only that Andrew’s placement in the ACE Program supplied the “good cause” necessary to support the adjournment. [3] See Wis. Stat. § 938.315(2). We find nothing amiss with this practice.¶19      The fact that the Juvenile Court of Racine County, Racine County Human Services Department and Racine Unified School District have joined together to offer a voluntary residential treatment program for adjudged juvenile delinquents that is an alternative to a “secured correctional facility” not found in Wis. Stat. § 938.34 does not make a juvenile’s participation illegal. As noted in Kendell G., a court is encouraged to give the juvenile a second opportunity to conform his or her behavior to any conditions the court imposed. Kendell G., 243 Wis. 2d 67, ¶16.

¶20      Furthermore, the court’s adjournment, at Andrew’s request, to permit him to participate in the ACE Program is in keeping with the spirit of Wis. Stat. ch. 938. … The ACE Program, by providing educational and behavior modification resources in an intensive residential setting, certainly advances this legislative intent. We therefore commend Racine county for the development of this creative alternative to placement in a secured correctional facility. We further praise the individuals involved with the ACE Program for having the foresight to obtain from the juvenile participant waivers of statutory time limits and consents to voluntary participation. [4]


 [4]  We also reject Andrew’s reliance on Grams v. Melrose-Mindoro Joint School District No. 1, 78 Wis. 2d 569, 254 N.W.2d 730 (1977). He quotes the following language from that case, “When the legislative will is expressed in peremptory terms of a statute it is paramount and absolute and cannot be varied or waived by the private conventions of the parties.” Id. at 578. From this he concludes that the “ACE Program could not have been transformed into a legal disposition by Andrew’s stipulation.” Grams does not apply here. The contract at issue in Grams required a teacher to instruct courses that she was not certified to teach when the statutes expressly declared that “[a] teaching contract with any person not legally authorized to teach the named subject … shall be void.” Id. at 577; Holtzman v. Knott, 193 Wis. 2d 649, 690, 533 N.W.2d 419 (1995) (distinguishing Grams). Thus, the contract was explicitly proscribed by statute. Holtzman, 193 Wis. 2d at 690.Wisconsin Stat. ch. 938 does not expressly prohibit stipulations relating to a juvenile’s voluntary entry into an alternative program or prohibit a court from finding good cause for an adjournment on the basis of the juvenile’s entry into such a program. Indeed, as we have explained, the legislative will as expressed in Wis. Stat. § 938.01 and contemplated in State v. Kendell G., 2001 WI App 95, 243 Wis. 2d 67, 625 N.W.2d 918, seems to support such actions.

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