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SCOW reverses discretionary juvenile non-waiver in law-free decision

State v. X.S., 2022 WI 49, 6/29/22, modifying and affirming an unpublished court of appeals decision, 2021AP419, case activity (including, for some reason, one brief)

Our supreme court is fond of extolling its role as a “law-developing court.” You’ll search in vain for any law development in this case. Rather than developing the law, the high court exercises its discretion to waive a juvenile into the adult system.

This isn’t an exaggeration. Obviously, an appellate court has the power (and the duty) to reverse a trial court’s erroneous exercise of discretion–and the decision to waive a juvenile into adult court is undisputedly discretionary. But the usual result of such a reversal is a remand back to that court to again exercise its discretion, with the benefit of whatever direction the appellate court has provided. Not so here; the four-justice (Ziegler writing for Roggensack, R.G. Bradley and Karofsky) majority declares without analysis that there’s “no reasonable basis” for any decision other than the one it reaches: that X.S. should be tried as an adult. (¶¶3, 56).

You can read our prior posts for the barest facts of the case: X.S. was the shooter in a well-publicized incident at the Mayfair mall that sent eight people to the hospital. Or, you could read the lengthy recitation in the majority opinion. (¶¶4-23). Curiously, what you won’t find in that opinion–except in very brief snippets–is the circuit court’s actual reasoning for denying waiver–that is, its exercise of discretion. You have to read all the way to Justice Hagedorn’s dissent for that. Go ahead and give it a look. Does it look deficient in reasoning or analysis to you? Compare it to the sorts of things that routinely get upheld as proper exercises of sentencing discretion. Note also that both witnesses at the hearing–including the social worker called by the state–recommended against waiver. Then, if you like, go back and read the majority opinion again. Though it does not even gesture toward developing the law, it delves deeply into the facts, and the five statutory factors, on its own–almost as if it were weighing the facts (though not all of them!) anew. As the dissent says, the majority

pays lip service to the deferential standard of review we are duty-bound to apply. After reviewing cold transcripts of testimony the circuit court heard firsthand, the majority concludes it knows better and grants the State’s waiver petition——a remedy even the State didn’t think to ask for.

The majority opinion does have one defender, though. Actually three. Chief Justice Ziegler, joined by R.G. Bradley and Roggensack, concurs with her own majority opinion, declaring herself, unsurprisingly, “correct.” She says there’s an additional reason–besides what can only be described as “wrongness”–that the circuit court’s decision can’t stand. That is its “striking” “lack of analysis” which, in the concurrence’s telling, “leaves the reader anxiously awaiting how the circuit court will weigh [the] facts and apply them to the statutory criteria.” (¶63). Perhaps the value of this opinion (together with the majority’s) from the practitioner’s perspective is the very high bar for logic and explanation the two writings set for a valid exercise of circuit court discretion. Go ahead and insist on it next time you’re litigating, say, the denial of ERP eligibility.

One side note: X.S. moved the court of appeals to reconsider its decision below; the court denied that motion in an order providing no explanation. X.S. contended in the supreme court that the court of appeals is obligated to explain its discretionary decision to deny reconsideration; a position with which the state agreed. Recent SCOW decisions on related points have been mixed. State v. Scott, 2018 WI 74, 382 Wis. 2d 476, 914 N.W.2d 141, said that COA has to give reasons for the denial of a stay pending appeal. State v. Jendusa, 2021 WI 24, 396 Wis. 2d 34, 955 N.W.2d 777, said COA has no obligation to explain the denial of a petition for interlocutory appeal. The majority doesn’t decide what rule applies to motions to reconsider, noting the issue in a footnote. The dissent, on the other hand, has its own footnote saying the court needn’t explain why it denies reconsideration.


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