Honorable Mark J. McGinnis v. Mario Jimenez, 2010AP2208, District 3, 1/25/11
court of appeals decision (1-judge, not for publication); for Jiminez: Shelley Fite, SPD, Madison Appellate; case activity; Jiminez BiC; State Resp.; Reply
The circuit court lacks authority to sanction a 17-year-old for failure to comply with conditions imposed for violating a local truancy ordinance.
¶4 Wisconsin Stat. § 938.355(6m)(ag) permits a court to sanction a “juvenile” who has violated a dispositional order involving a municipal truancy ordinance. However, in Wis. Stat. ch. 938, “for purposes of investigating or prosecuting a person who is alleged to have violated … any civil law or municipal ordinance,” the term “juvenile” does not include a person who has attained seventeen years of age. Wis. Stat. § 938.02(10m). At the time the initial truancy citation was issued, Jimenez was seventeen years old. Thus, Jimenez was not a “juvenile,” and the court had no authority to sanction him pursuant to § 938.355(6m)(ag).
The court rejects the idea that “inherent contempt power” supported the sanction, discussing in the process the incidents of punitive and remedial contempt. Punitive contempt is out because it requires a criminal complaint filed by a prosecutor and the sanction proceeding was commenced by the judge’s motion, ¶8. Nor may the sanction be characterized as remedial contempt, because it was neither “purgeable” nor sought by a private party (that is, “someone other than the trial court”), ¶¶9-10. D.L.D. v. Circuit Court, 110 Wis. 2d 168, 327 N.W.2d 682 (1983) (court held that juvenile may be found in contempt for violating truancy order, but did not hold that statutory contempt procedures could be ignored in the process), distinguished ; B.L.P. v. Circuit Court, 118 Wis. 2d 33, 44, 345 N.W.2d 510 (Ct. App. 1984) (court may not exercise inherent contempt authority in juvenile case without following procedures prescribed by ch. 785), followed.
Sounds like this judge is out of his mind thinking he has such powers.