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Juvenile Delinquency – Waiver Investigation: Ex Parte Prosecutorial Participation

State v. Tyler T., 2012 WI 52, affirming unpublished decision; for Tyler T.: Susan E. Alesia, SPD, Madison Appellate;  case activity

While the practice of allowing ex parte prosecutorial input at the final staffing of a juvenile waiver investigation can’t be recommended, it is nonetheless not impermissible as a matter of law.

¶4   We conclude that the circuit court did not err in denying Tyler’s request to strike the waiver investigation report prepared by the DHHS.  While we have reservations about the DHHS’s decision to invite only the assistant district attorney to its final staffing meeting, we decline to create a bright-line rule precluding the DHHS from communicating directly with either party, be it the State or the juvenile, for purposes of preparing a waiver investigation report.  Rather, consistent with the DHHS’s role in delinquency proceedings and in furtherance of the express objectives of Wis. Stat. ch. 938, we conclude that the DHHS is free to compile information for a waiver investigation report in the manner it deems most beneficial to the circuit court.

¶37  To be sure, as Tyler notes, a waiver investigation report under Wis. Stat.§ 938.18(2m) bears some similarities to a PSI report under Wis. Stat. § 972.15.  …  Still, it does not follow, as Tyler suggests, that we must apply to waiver investigation reports the same objectivity requirements that we demand of PSI reports.  In other respects, a waiver investigation report is fundamentally different than a PSI report.

¶38  …  Thus, in preparing a PSI report, “[i]t necessarily follows that a parole or probation officer acts on behalf of an independent judiciary,” not as an agent of either the State or the defense.  McQuay, 154 Wis. 2d at 131; see also State v. Washington, 2009 WI App 148, ¶9, 321 Wis. 2d 508, 775 N.W.2d 535 (“The DOC does not function as an agent of either the State or the defense in fulfilling its PSI role but as an agent of the court in gathering information relating to a specific defendant.”).  In this respect, a waiver investigation report is distinct from a PSI report.  Unlike the author of a PSI report who, in order to protect the integrity of the sentencing process, must remain neutral and independent from both the prosecution and the defense, see Howland, 264 Wis. 2d 279, ¶36; Suchocki, 208 Wis. 2d at 518; Perez, 170 Wis. 2d at 140, the author of a waiver investigation report, here, DHHS, is necessarily involved with both the juvenile and the State from the start of the delinquency process.  …  As these statutes demonstrate, unlike the sentencing process, which requires the DOC to remain neutral and independent from both the prosecution and the defense, the delinquency process requires immediate contact between the DHHS and both the juvenile and the State.

¶39  Given the DHHS’s role in delinquency proceedings as outlined in Wis. Stat. ch. 938, we do not think that the DHHS’s contact with the juvenile and the State must necessarily cease at the preparation of a waiver investigation report.  Indeed, in light of the criteria under Wis. Stat. § 938.18(5) that the DHHS is directed to analyze, a waiver investigation report may not be complete unless the DHHS continues to communicate with the juvenile and the State. …

¶40  …  In the context of waiving juvenile court jurisdiction, our courts have recognized that the juvenile court’s dual responsibility to protect both the juvenile and the public is “best served when the court has access to the fullest information possible.”  S.N. v. State, 139 Wis. 2d 270, 275, 407 N.W.2d 562 (Ct. App. 1987);[13] see also D.H., 76 Wis. 2d at 303.  …  Accordingly, we decline to create a bright-line rule precluding the DHHS from communicating directly with either party, be it the State or the juvenile, for purposes of preparing a waiver investigation report.  Rather, we conclude that the DHHS is free to compile information for a waiver investigation report in the manner it deems most beneficial to the circuit court.

¶41  That being said, in the instant case, we share the circuit court’s reservations about the DHHS’s decision to invite only ADA Wiedenfeld to its final staffing meeting.  Inviting only one party to a final staffing meeting creates a perception of imbalanced information, a perception which——like in the instant case——may prove inaccurate.  Here, any perceived imbalance caused by ADA Wiedenfeld’s participation in the staffing meeting was refuted by the circuit court’s uncontroverted findings that ADA Wiedenfeld’s presence was not coercive and that positions both in favor of waiver and against waiver were represented.  In addition, the circuit court expressly stated that its decision to waive juvenile court jurisdiction over Tyler was based upon the court’s “own feelings” and not upon the DHHS’s waiver investigation report.  In the future, however, it may be a better practice for the DHHS to invite both parties, or neither party, to its final staffing meeting.  We will leave that decision to the DHHS.

The majority goes astray, says the two-Justice dissent,  in failing to recognize the apparent statutory purpose, which “is to provide a procedure for court appointment of an independent agent of the court charged with gathering the fullest possible information,” ¶60. Therefore, the majority “erroneously concludes that waiver reports are held to a lower standard of objectivity,” ¶61. Nonetheless, the majority has spoken, and zealous advocates will have to deal with the fall-out as best they can – if prosecutors are entitled to funnel information and advocate ex parte, then so are defense counsel.

One, seemingly gratuitous, toss-away by the court, ¶29 n. 10:

In Blum v. 1st Auto & Casualty Insurance Co., 2010 WI 78, ¶46, 326 Wis. 2d 729, 786 N.W.2d 78, this court held that unless we “explicitly state[] otherwise, a court of appeals opinion overruled by this court no longer retain[s] any precedential value.”  In the instant case, neither Tyler nor the State discusses whether Suchocki retains any precedential value in light of our holding in Blum.  In fact, neither party even acknowledges that Suchocki has been overruled in part.  In any event, because we conclude that Suchocki is inapplicable to the instant case, see infra ¶37, we need not decide today whether Suchocki retains any precedential value.

It seems to be true that when a published decision has been “overruled” by the supreme court, it no longer has “any” precedential effect. See discussion here; here, and here, for example. On the other hand, when the supreme court merely  “reverses” the mandate rather than expressly “overruling” another decision, the impact is limited to the particular result. Id. The majority mischaracterizes (¶29) State v. Tiepelman, 2006 WI 66, ¶2, 291 Wis. 2d 179, 717 N.W.2d 1, as having “overruled” albeit “on other grounds,” Suchocki. Not so. Instead, Tiepelman reversed the result and stated in the process that it would “withdraw any language in … Suchocki … to the contrary,” id. Accord, id., ¶31, “We must, therefore, reverse that affirmance, and withdraw any language in … Suchocki … to the contrary.” Unless and until the court explicitly declares that “withdraw language” is equivalent to “overrule,” something that seems highly unlikely, it’s probably best not to read too much into the footnote .

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