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Sanction for violation of juvenile disposition order limited to 10 calendar days

State v. A.A., 2020 WI App 11; case activity

Wisconsin Stat. § 938.355(6)(d)1. sets a maximum length of “not more than 10 days” for a custody sanction that a circuit court may impose on a juvenile who has violated a dispositional order. Is that 10 calendar days? Or, as the state argues, does “day” mean 24 consecutive hours, so that the maximum sanction is 10 consecutive 24-hour periods? It’s a calendar day, essentially, holds the court of appeals.

¶2     We agree with A.A. that the word “day” in Wis. Stat. § 938.355(6)(d)1. means a calendar day and not a series of hours. We interpret the statute this way in light of the general common law rule that fractions of days are not recognized when a time period is framed in terms of “days” in the circumstances present here. Under the common law rule, neither a juvenile’s entering custody or being released is referable to a particular hour or minute of a day. These events are deemed to have occurred on the first and last days of the sanction.

As a sanction for A.A.’s violation of a dispositional order, the circuit court imposed nonsecure custody for 10 days, beginning January 16 and ending January 26, 2018. The circuit court rejected A.A.’s calendar day argument, which cited State v. Johnson, 2018 WI App 2, 379 Wis. 2d 684, 906 N.W.2d 704, and instead relied on § 990.001(4), which excludes the day of the event from which the time limit is measured.  (¶¶4-7).

The court of appeals agrees with A.A.’s conclusion, but not based on Johnson. Concluding that § 938.355(6) is ambiguous as to whether “day” is a calendar day or a 24-hour interval, the court conducts a thorough review of the usual list of aids to construing ambiguous statutes—statutory and dictionary definitions; statutory context and related statutes; avoiding absurd or unreasonable consequences—but finds they don’t help.  (¶¶16-28). The court also rejects the circuit court’s reliance on § 990.001(4). (¶¶34-39).

The court resolves the ambiguity by recourse to a common law convention: the “venerable principle that the law generally does not recognize fractions of a day.” Pettygrove v. Pettygrove, 132 Wis. 2d 456, 464, 393 N.W.2d 116 (Ct. App. 1986) (citing Knowlton v. Culver, 2 Pin. 243, 246 (1849). (¶30). Under this principle, “a day is considered to be an indivisible unit and is not broken down into a collection of hours or minutes.” (¶31). The principle shouldn’t be applied if the hour-to-hour timing of events is necessary to determine an order of events that affects the rights of parties, but there is no indication that is needed in the context of sanctions under § 938.355. (¶¶30, 32).

The legislature is presumed to know about common law principles when it drafts statutes, and to abide by them unless it clearly expresses its intent not to. (¶15). There’s no such clearly expressed intent here, so “the common law default time convention leads us to the same place as A.A.’s calendar-day approach: any part of any unique calendar day spent in custody is essentially ‘rounded up’ to a ‘day’ of custody.” (¶32).

That means A.A.’s sanction was one day too long, though as you might guess, that’s moot, since the time is long since served. (¶¶1, 3 n.2).

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