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Running away for six days is one violation of juvenile disposition order, not six

State v. D.L.L., 2018AP1064-FT, District 2, 11/21/18 (one-judge decision; ineligible for publication); case activity

D.L.L., who was under a delinquency dispositional order placing him at his mother’s home, ran away for six days. The state moved for sanctions, alleging six violations of the dispositional order, one for each day he was gone. The juvenile court agreed that each day could be a separate violation. The juvenile court was wrong.

Section 938.355(6)(d)(intro.) says that a court may order sanctions for “any incident in which the juvenile has violated one or more conditions of his or her dispositional order[.]” State v. Ellis H., 2004 WI App 123, 274 Wis. 2d 703, 684 N.W.2d 157, held that one incident of running away was one violation, even though while the juvenile was on the lam he violated other conditions:

¶8     We determined [in Ellis H.] that the plain language of Wis. Stat. § 938.355(6)(d) “recognizes that multiple conditions may be violated in any one incident but only allows one sanction per incident, not per condition violation.” Ellis [H.], 274 Wis. 2d 703, ¶7. In saying so, we noted that the legislature made “the public policy choice that a sanction should not be perceived as punishment, but as a tool to coerce a recalcitrant child to comply with the conditions stated in the dispositional order.” Id., ¶9.

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¶10    We concluded that Ellis’ failure to report to his social worker and for community service were not incidents separate “from his single act of running away.” Id., ¶25. We expressed that “common sense dictates that his [single] act of running away meant that he did not intend to submit to any authority, whether it be his foster parents, his social worker or the agency supervising his community service.” Id. We added:

While he did violate different conditions when he missed his appointment with his social worker and did not appear for community service, these two violations simply do not evidence a volitional departure in Ellis’ course of conduct and an intent to “invade a different interest.” Rather, they are a reflection of his flight from and refusal to submit to authority. Ellis’ running away, his failure to meet with his social worker and to report for community service therefore are a single incident [allowing for only one sanction].

Id.

As in Ellis H., so too here: “Based on our holding in Ellis [H.], we are compelled to hold here that D.L.L.’s absence from home for the single, continuous period of six days could only be sanctioned as one incident.” (¶12).

Three additional points: First, Ellis actually ran away on three separate occasions for multiple days, 274 Wis. 2d 703, ¶3, but the state charged only one violation of conditions. The Ellis H. court observed in passing that the state could have charged three violations, one for each occasion Ellis ran away. The state’s attempt to convert that observation into authority for charging a violation for each day the juvenile was gone is dismissed by the court of appeals as the misreading of Ellis H. it so clearly is. (¶11).

Second, D.L.L. initially made a deal with the state and stipulated to three of the six violations; only thereafter did he challenge the multiple violations under Ellis H. by filing a motion to reconsider. (¶¶3-4). The court notes it “can envision multiple ways in which the State may have prevailed in this appeal with properly made and preserved procedural arguments” (¶5)—that is, by arguing forfeiture or waiver or judicial estoppel. But the state made none of those arguments, either in response to the reconsideration motion or on appeal, so the court goes right to the merits.

Third, the state cites three unpublished court of appeals decisions from the 1990s for their persuasive value. “We direct the State to Wis. Stat. Rule 809.23(3)(b) and caution it against such citations in the future.” (¶12 n.4). The rule is clear that unpublished decisions issued before July 1, 2009, can’t be cited for persuasive value.

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