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COA opts for defense-friendly reading of Marsy’s Law in published juvenile defense win!

State v. M.L.J.N.L., 2021AP1437, 2/28/24, District IV (recommended for publication); case activity

In one of our first published decisions to address the impact of Marsy’s Law, COA accepts the agreed-upon position of both parties that Marsy’s Law does not alter the framework for assessing requests for juvenile restitution under § 938.34(5)(a). 

UPDATE: This post is being republished to reflect that, after counsel for M.L.J.N.L. filed a motion for reconsideration, COA withdrew its prior decision and reissued with an interesting modification to the final paragraph, describing the remedy ordered. Thus, while COA initially ordered that the restitution issue should be remanded back to the circuit court so that it could “recalculate” the restitution in conformity with the statutory procedure, COA’s published decision instead merely reverses the challenged order outright. We’ve updated the text of this post and the links therein to reflect these changes.

“M” was adjudicated delinquent for a burglary. (¶1). Presumably, as all parties acknowledged throughout this litigation, the issue of restitution in his case was controlled by § 938.34(5)(a), which limits restitution to an amount that the “the juvenile alone is financially able to pay.” (¶1).

When “M” was first adjudicated, restitution was ordered as “TBD.” (¶5). However, after the dispositional hearing, Marsy’s Law was ratified. (¶6). Thus, when it came time to apply this statute at the circuit court level, the State argued that this constitutional amendment–which created a right of victims to “full restitution from any person who has been ordered to pay restitution to the victim and to be provided with assistance collecting restitution,” art. I, § 9m(2)(m)–rendered this juvenile restitution statute facially unconstitutional. (¶7). The State argued that the amendment effectively “repealed” the ability to pay language and instead created an absolute right of victims to be made “whole” for their losses. (Id.). The circuit court agreed with the State’s argument and found that the statute effectively granted “crime victims the right to receive restitution in a sum that is equal to the total dollar amount of the damages that they incurred as a result of the juvenile’s unlawful conduct.” (¶9). It granted the request for restitution without assessing the juvenile’s ability to pay. (Id.). 

On appeal, this case has been anxiously watched by those interested in the way our  controversial new constitutional amendment will be applied. However, any chance of fireworks are extinguished, in a good way, by the State’s concession that the circuit court got it wrong. (¶11).  Read “reasonably and in context,” both parties agree that the statute does not conflict with the constitutional amendment and is therefore constitutionally sound. (Id.).

The discussion of the statute and the constitution is somewhat lengthy, but, in essence, turns on COA’s conclusion that the term “restitution” in the constitutional amendment is a legal term of art. (¶22). “Restitution is a creature of statute, there being no right to restitution in juvenile delinquency proceedings (or in criminal proceedings, for that matter) apart from the statutes that authorize it.” (Id.). COA therefore holds that “‘restitution’ is not the total dollar amount of a victim’s damages, but is instead the amount that a court orders a juvenile or criminal defendant to pay as restitution in compliance with those statutory provisions and limitations.” (Id.). 

Because the legislature is presumed to act with knowledge of existing laws, COA has no difficulty in concluding that the legislature did not intend to depart from this well-settled understanding of “restitution.” (¶23). Other signifiers–like the clause “has been ordered to pay”–likewise support that reading. (¶24). If the legislature had meant to create a broader right to “restitution” it could have said so directly; it did not, and COA does not see fit to make the argument for that potentially extreme reading of the statutes (one that would call into question many other statutory provisions) here. (¶25). Thus, “the only reasonable reading of WIS. CONST. art. I, § 9m(2)(m) is that victims have the right to recoup the total amount of money that a circuit court orders as restitution, consistent with the statutes that define and govern the restitution that a court may order.” (¶27). COA therefore reverses the restitution order outright. (Id). 

This is an interesting and important case for several reasons. First, it resolves a question that was flagged immediately after the passage of the amendment in a memo drafted by the Wisconsin Supreme Court’s Office of Court Operations (the link is broken in the opinion) which highlighted the ambiguous nature of the “full restitution” language. While one might have hoped that answers about the meaning of a sweeping constitutional amendment would have been resolved before ratification, we can all be grateful that at least some of our questions about this new amendment are beginning to trickle through the courts. Second, the case is notable for the AG’s concession–something not at all anticipated, but perhaps motivated by a sense of fair play given that Marsy’s Law was sold to the public with assurances it would change nothing about the current rights of the accused. On that note, the AG’s concession–and COA’s adoption thereof–is potentially noteworthy inasmuch as it signals a willingness to endorse and accept this conservative reading of an amendment which garnered much defense community doomsaying in the days prior to its passage. The AG’s concession is also a huge deal because it means this case will not be reviewed by SCOW and, hence, this published decision of COA is one starting point for assessing the impact of Marsy’s Law on existing statutory procedures.

In other words, as COA acknowledged in a footnote, the decision has an impact that goes beyond just this specific juvenile restitution provision. Litigators who have encountered similar arguments in the adult criminal restitution context now have firm ground on which to resist those dubious readings of the new constitutional amendment. Under this reading, the statutory caps, the ability to pay provision, and other defenses remain viable at contested restitution hearings. (Note that COA specifically chose not to address a broader argument that Marsy’s Law wholly erased the statutory procedure for awarding restitution but, in any case, that bonkers scenario is now firmly off the table due to its holding here).

Finally, while this appeal is obviously limited to a discussion of restitution, we leave it to our readers to decide whether this published authority accepting a conservative–as opposed to broad–reading of Marsy’s Law is compatible with, or at the very least inspirational to, your ongoing battles on other fronts in this general legal context.

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