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Delinquency – Restitution

State v. Michael S. L., 2010AP2352, District 2, 1/19/11

court of appeals decision; for Michael S.L.: Leonard D. Kachinski; case activity

Restitution order of 200 hours’ community service, on adjudication for disorderly conduct for “prank”  bomb threat to school, and based on school’s estimate of economic loss due to evacuating students and staff for the bomb scare, was within juvenile court’s authority. Although Michael S.L. did not admit to making the threats himself, the record establishes a sufficient nexus between his conduct and the harm at issue.

¶7 When deciding whether there is a sufficient nexus between the criminal behavior and the restitution order, the trial court has discretion.  See Canady, 234 Wis. 2d 261, ¶12.  Michael conceded in his brief that “[t]he facts regarding the allegations in the delinquency petition and Michael’s admission at the plea hearing were not in dispute.”  In other words, Michael agrees that he engaged in some sort of conduct that tended to cause or provoke a disturbance.  See Wis. Stat. § 947.01.  Specifically, he agrees that he discussed making some prank calls to school staff around the time of the bomb threats.  He agrees that he made at least one call using the same phone that was used minutes later to make the bomb threats.  He admits to being present when his friend called in the bomb threats, and he admits he did not come forward before the police called him.  As the State points out, Michael’s undisputed actions were part of a chain of events that led to the bomb scare.  See Longmire, 272 Wis. 2d 759, ¶13.  The trial court was within its discretion to order restitution to the school based on the disruption caused by a series of prank calls to the staff.

“The trial court has discretion”? To do what, exactly? Decide whether the juvenile / defendant’s culpable conduct was a “substantial factor” in the harm for which recompense is sought? Causation, as measured by our but-for, substantial-factor yardstick, isn’t limited by a Palsgraf-type forseeability test and thus has few if any limits. (See, on this point, Judge Dykman’s pointed dissent, in Hicks v. Nunnery, 2002 WI App 87, ¶¶77 et seq.) It’s not at all clear what role this juvenile had in the result:

¶2        The parties agree that the facts of this case are undisputed as stated in the petition.  On March 11, 2010, Michael was given in-school suspension in the same room as two other juveniles.  During their time in suspension, several “prank” phone calls were made, including two calls to school staff claiming that a bomb was in the school.  Michael admitted to police that he made a call to his social worker and that he knew who had made the bomb-related calls.  He did not admit to actively participating in the bomb-related calls.

That’s it. Enough to establish his causal role in the resultant loss to the school? It was apparently enough for the court. Now, it is certainly undeniable that the bomb threat “caused” the school’s loss, whether as a function of foreseeability or as a substantial factor in the result. True, Palsgraf in that narrow sense has nothing to do with it. But in a larger sense, it does. If “substantial factor” is the metric, then perhaps (though the matter  is hardly free from doubt) the juvenile might be said to have “caused” the harm.  The court’s conclusion in ¶7 applies the substantial-factor test in effect if not name. Weak tea, really–maybe his presence lent moral support to the miscreants who actually committed the offense–but that may be all the test requires. A foreseeability test would, if nothing else, compel a harder look at the person’s role, though it is granted that Wisconsin may be irrevocably committed to the substantial-factor test.

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