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SCOW addresses juvenile competency proceedings

State v. A.L. , 2019 WI 20, affirming a published court of appeals decision, 2017 WI App 72; case activity

This appeal centers on the proper interpretation of §938.30(5)(d) and §938.13 governing juveniles found not competent during a delinquency proceeding. SCOW holds a circuit court may resume suspended juvenile delinquency proceedings to reexamine the competency of a juvenile who was initially found not competent and not likely to become competent within the statutory period. It also holds that circuit courts retain competency over juvenile delinquency proceedings even after the accompanying JIPS order has expired.

When A.L. was 15, he allegedly stabbed and killed his cousin. Before he could plead, defense counsel raised competency.  Two doctors found A.L. not competent and not likely to become competent within the statutorily-required period. The circuit court suspended the juvenile proceedings, entered a JIPS order, and placed A.L. in a residential treatment facility.

Meanwhile, in 2014, the State filed another juvenile delinquency petition against A.L.. Following the same routine, the circuit court found him not competent and not likely to become competent, suspended the proceedings, and entered a JIPS order. Also in 2014, the State charged A.L. with several crimes in adult court. For the adult case, the circuit court found him competent to proceed, and he pled guilty. Then it found him competent for the 2014 juvenile delinquency proceeding, so that case  was resumed too.

But what about the suspended 2012 juvenile proceeding where the JIPS order had expired? Could the circuit court order A.L. to be reexamined and resume those proceedings too? Case law on Chapter 938 competency proceedings is scant–perhaps nonexistent. So SCOW’s construction of these statutory provisions at ¶¶12-23  is a “must read” for practitioners of juvenile law.  In a nutshell, SCOW held:

¶23 We conclude that the language of Wis. Stat. § 938.30(5), read in conjunction with the language of ch. 938, allows a circuit court to resume delinquency proceedings that were suspended because a juvenile was initially found not competent to proceed under § 938.30(5)(d) and not likely to become competent within the statutory time limits.

One of SCOW’s concerns here was that if a circuit court can’t resume suspended proceedings after the juvenile becomes competent, then there’s no way to resolve the case. The delinquency proceeding would be suspended indefinitely. Opinion ¶18.

¶26 . . . According to A.L., if the JIPS order expires before the juvenile is found competent to proceed on the delinquency proceedings, the circuit court loses
competency over the delinquency proceedings. However, the JIPS court has jurisdiction only over the JIPS proceedings, which are separate from the delinquency proceedings. A JIPS order or ch. 51 commitment assists only in competency restoration and provides services and safety to juveniles.

¶27 Wisconsin Stat. § 938.30(5)(e) further demonstrates that the court presiding over the JIPS proceedings does not truly have “exclusive original jurisdiction” in the sense that A.L. asserts. Pursuant to § 938.30(5)(e), a juvenile who is found not likely to become competent is subject to a separate JIPS order, yet the circuit court may continue to exercise jurisdiction over the juvenile through reexamination for competency and resumption of delinquency proceedings if the juvenile becomes competent within the statutory time frame. Therefore, the expiration of A.L.’s accompanying JIPS order in March 2015 has no bearing on the circuit court’s competency to proceed with A.L.’s delinquency proceedings.

All 7 justices agreed to the result in this case. But Kelly’s concurring opinion makes him SCOW’s “poetic justice.” He opens with an excerpt from Silence by Thomas Hood in order to illustrate a point regarding statutory construction.  The majority admits that §938.30(5) does not say what becomes of a suspended delinquency proceeding for juveniles who were found not competent and not likely to become competent. Kelly faults the majority for construing the statute to provide the answer the legislature must have intended but neglected to write. That was unnecessary, he says. When the legislature is silent on a subject, SCOW has the power to address it. Concurrence ¶¶29-34.

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