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Delinquency Sanctions: Municipal Truancy – Electronic Monitoring; Judicial Bias / (Juvenile) Disqualification: Judge’s Initiation of Sanctions Works Disqualifier

State v. Dylan S. / Renee B., 2012 WI App 25 (recommended for publication); for Dylan S.: Devon M. Lee, SPD, Madison Appellate; case activity;  for Renee B.: Susan E. Alesia, SPD, Madison Appellate; case activity

Delinquency – Sanctions – Municipal Truancy 

After finding the juveniles in violation of  first-offense truancy under the local municipal code, the trial court set compliance conditions. The court did not, however, enter a written dispositional order. The court subsequently found that the juveniles failed to comply with the conditions and imposed sanction orders (home detention with electronic monitoring). The court of appeals now holds that, because a written dispositional order must be entered before a sanction may be imposed, these sanction orders were invalid.

¶20      Dylan and Renee argue the circuit court violated these statutory provisions in several ways.  First, they contend that the court lacked statutory authority to sanction them because the court never entered written dispositional orders that could serve as a basis for sanctions.  We agree.  Under Wis. Stat. § 938.355(6m)(ag), a court may sanction a juvenile who has been adjudicated truant if it finds by a preponderance of the evidence that the juvenile violated a condition of the dispositional order.  Wisconsin Stat. § 938.355(2)(b) states that the dispositional order “shall be in writing[.]”  (Emphasis added.)

The court rejects an argument that the trial court’s “minutes” sheet – which reflected the oral disposition – suffices:

¶23      We disagree.  A minutes sheet is not a court order.  A court order must be signed by a judge.  See Wis. Stat. § 807.11(1).  The circuit court did not sign the minutes sheets in Dylan’s and Renee’s cases.

Indeed, it follows that the underlying disposition (that is, adjudication of truancy) is not itself appealable, as the court subsequently indicates, ¶32 (“Because the truancy adjudications were never reduced to written orders, we lack jurisdiction to review them.  A judgment or order must be reduced to writing and filed with the clerk of the circuit court before it may be appealed.”). Just to clarify: the sanction orders were themselves entered, ¶¶5, 14; they are the subject of the appeal, so jurisdiction isn’t problematic.

Delinquency – Sanctions – Electronic Monitoring 

Electronic monitoring is not authorized as a sanction:

 ¶26      First, Dylan and Renee argue that the court lacked statutory authority to order electronic monitoring as a sanction.  They correctly note that the statutes contain a list of permitted sanctions, and electronic monitoring is not one of them.  See Wis. Stat.§§ 938.342(1g)(b)-(k), 938.342(1m), 938.355(6m)(a)1m., 938.355(6m)(ag).  Where a statute lists items included in its purview, omission of an item is evidence that the legislature intended to exclude it.  See Gottlieb v. City of Milwaukee, 90 Wis. 2d 86, 95, 279 N.W.2d 479 (Ct. App. 1979).  Moreover, the juvenile code “is a chapter of carefully spelled out definitions and enumerated powers.”  See State ex rel. Harris v. Larson, 64 Wis. 2d 521, 527, 219 N.W.2d 335 (1974).  Its language is “carefully drawn to circumscribe judicial and administrative action.” See id.  “[I]n short, if the legislature did not specifically confer a power, it is evidence of legislative intent not to permit the exercise of the power.”  See id.

Judicial Bias / (Juvenile) Disqualification 

A court may initiate a sanctions motion, but if it does so, then it is disqualified from holding a hearing on the motion, § 938.355(6m)(b). The juvenile court here specifically found, before a sanctions motion had been filed, that Renee was in non-compliance and therefore might be sanctioned – this at least “arguably” worked an “initiation of a sanctions motion, in which case the court would have been required to disqualify itself from presiding over the subsequent sanctions hearing,” ¶29. In any event, the trial court evinced bias:

¶30      Furthermore, even if the court did not initiate the sanctions motion against Renee, before any sanctions motions were filed, the court found that both Dylan and Renee violated its orders, which demonstrates objective bias.  Objective bias can exist where there is an appearance of partiality—that is, where a reasonable person could question the court’s impartiality based on the court’s statements—and the appearance of partiality reveals a great risk of actual bias.  See State v. Goodson, 2009 WI App 107, ¶¶9, 14, 320 Wis. 2d 166, 771 N.W.2d 385.  Here, a reasonable person would interpret the court’s statements to mean that the court decided Dylan and Renee had violated its dispositional orders before the sanctions hearing.  This appearance of partiality reveals a great risk that the court actually did prejudge the sanctions motions.

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