Hezzie R., In Interest of

Citation580 N.W.2d 660,219 Wis.2d 848
Decision Date31 August 1998
Docket NumberNos. 97-0676,97-0685 and 97-1109,s. 97-0676
Parties, 220 Wis.2d 360 In the Interest of HEZZIE R., a person Under the Age of 17. STATE of Wisconsin, Petitioner-Appellant, v. HEZZIE R., Respondent-Respondent. In the Interest of LUIS H., a person Under the Age of 17. STATE of Wisconsin, Petitioner-Respondent, v. LUIS H., Respondent-Appellant. In the Interest of RYAN D.L., a Person Under the Age of 17. STATE of Wisconsin, Petitioner-Respondent, v. RYAN D.L., Respondent-Appellant.
CourtUnited States State Supreme Court of Wisconsin

97-0676: For the petitioner-appellant the cause was argued by Gregory M. Posner-Weber, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.

For the respondent-respondent there was a brief by Debra Flynn-Parrino, Assistant State Public Defender and Stacy B. Walker, Assistant State Public Defender and oral argument by Eileen A. Hirsch.

97-0685: For the petitioner-respondent the cause was argued by Gregory M. Posner-Weber, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.

For the respondent-appellant there was a brief by Michael Yovivich, Assistant State Public Defender and Eileen A. Hirsch, Assistant State Public Defender and oral argument by Eileen A. Hirsch.

97-1109: For the petitioner-respondent the cause was argued by Gregory M. Posner-Weber, Assistant Attorney General, with whom on the brief was James E. Doyle, Attorney General.

For the respondent-appellant there was a brief by Michael Yovivich, Assistant State Public Defender and Eileen A. Hirsch, Assistant State Public Defender and oral argument by Eileen A. Hirsch.

¶1 N. PATRICK CROOKS, Justice

These consolidated cases are before the court 1 for determination of the constitutionality of the elimination of the right to trial by jury in juvenile delinquency cases under Wis Stat. § 938.31(2)(1995-96). 2 Three juveniles contend that the elimination of a jury trial as part of a delinquency adjudication violates their state and federal constitutional rights.

¶2 We conclude that the provisions in the Juvenile Justice Code (JJC), Wis. Stat. ch. 938, that may subject a juvenile who has been adjudicated delinquent to placement in an adult prison are criminal in nature. Accordingly, the provisions in Wis. Stat. §§ 938.538(3)(a)1, 938.538(3)(a)1m, and 938.357(4)(d) which subject a juvenile to placement in an adult prison violate a juvenile's rights to a trial by jury under Article I, § 7 of the Wisconsin Constitution and the Sixth and Fourteenth Amendments to the United States Constitution. Those provisions can and must be severed from the current JJC, consistent with precedent from this court and the Wisconsin Legislature's express intent to sever statutory provisions when necessary. The remaining non-criminal portions of Wis. Stat. ch. 938 are constitutional even absent the right to a trial by jury, since juveniles do not have a state or federal constitutional right to a trial by jury in the adjudicative phase of a juvenile delinquency proceeding.

I.

¶3 The facts and procedural history in the consolidated cases are undisputed. We address each in turn.

A. State v. Ryan D.L.

¶4 Ryan D.L. was 14 years old when the State initiated a juvenile petition in Clark County charging him with two counts of second degree sexual assault, actions contrary to Wis. Stat. § 940.225(2)(a). During the course of the delinquency adjudication, Ryan filed a request with the circuit court assigned to exercise jurisdiction under Wis. Stat. ch. 938 for a jury trial. Based on Wis. Stat. § 938.31(2) and this court's decision in N.E. v. Wisconsin DHSS, 122 Wis.2d 198, 361 N.W.2d 693 (1985)(determining that juveniles have no constitutional right to a jury trial), the circuit court denied the motion and proceeded to find Ryan delinquent on both counts. The circuit court then entered a dispositional order placing Ryan at Lincoln Hills.

¶5 Ryan appealed the circuit court's denial of his request for a jury trial based on state and federal due process protections. We accepted certification from the court of appeals.

B. State v. Hezzie R.

¶6 The State filed a juvenile petition against 14-year-old Hezzie R., charging him with first degree sexual assault of a child, contrary to Wis. Stat. § 948.02(1). Hezzie requested a jury trial, alleging that Wis. Stat. § 938.31(2) deprived him of due process. The State objected to his request. The circuit court assigned to exercise jurisdiction under Wis. Stat. ch. 938 reviewed the new JJC and determined that "[t]he procedures of the juvenile court have become more like criminal court proceedings...." Finding it significant that an adjudication of delinquency would make Hezzie subject to placement in the JJC's Serious Juvenile Offender Program (SJOP), the circuit court determined that Wis. Stat. § 938.31(2) was unconstitutional as applied to Hezzie and that he was entitled to a jury based on due process considerations.

¶7 At the State's request, the court stayed further proceedings pending appeal of that determination. Upon our acceptance of the certification in Ryan L., the State asked for and received bypass of the court of appeals in Hezzie.

C. State v. Luis H.

¶8 Luis H. was 13 years old when the State initiated delinquency proceedings charging him with first degree sexual assault of a child, in violation of Wis. Stat. § 948.02(1). Prior to any adjudication of delinquency, Luis filed an objection to the court's failure to provide him with a jury trial. The case was then consolidated with Hezzie R..

¶9 The same circuit court that determined that Hezzie's due process rights would be violated since he would be subject to placement in the SJOP determined that Wis. Stat. § 938.31(2) was not unconstitutional on its face and that Luis's due process rights would not be violated by the absence of a jury trial. The court reached its disparate determinations in Hezzie and Luis H. based on its conclusion that while the punitive aspects of the SJOP required a jury determination of delinquency in Hezzie's case, juveniles like Luis not potentially subject to placement in the SJOP were not entitled to a jury. 3

¶10 Luis then pursued a permissive appeal under Wis. Stat. § 808.03(2), and the circuit court stayed further proceedings pending his appeal. This court accepted the case on bypass and consolidated it with the two other matters.

II.

¶11 A thorough discussion of the appropriate standard of review by this court is essential. This court reviews challenges to the constitutionality of a statute de novo. See State v. Hall, 207 Wis.2d 54, 67, 557 N.W.2d 778 (1997)(citing State v. McManus, 152 Wis.2d 113, 129, 447 N.W.2d 654 (1989)). Statutes are presumed to be constitutional; therefore, "every presumption must be indulged to uphold the law if at all possible." Norquist v. Zeuske, 211 Wis.2d 241, 250, 564 N.W.2d 748 (1997)(citing Gottlieb v. City of Milwaukee, 33 Wis.2d 408, 415, 147 N.W.2d 633 (1967)); see also State ex rel. Fort Howard Paper Co. v. State Lake Dist. Bd. of Review, 82 Wis.2d 491, 505, 263 N.W.2d 178 (1978)("The cardinal rule of statutory construction is to preserve a statute and find it constitutional if it is at all possible to do so.").

It is an elementary principle of law in this state that this court will search for a means to sustain a statute and will not infer or go out of its way to find means with which to condemn a statute adopted by the legislature. In fact, this court has in the past and will continue to sustain the constitutionality of a statute if any facts can be reasonably conceived which will support its constitutionality. Thus, the burden of establishing the unconstitutionality of a statute is on the person attacking it, who must overcome the strong presumption in favor of its validity.

White House Milk Co. v. Reynolds, 12 Wis.2d 143, 150-51, 106 N.W.2d 441 (1960).

¶12 Due to this strong presumption of constitutionality, a party challenging a statute bears the heavy burden of proving that the statute is unconstitutional beyond a reasonable doubt. See City of Milwaukee v. Kilgore, 193 Wis.2d 168, 188, 532 N.W.2d 690 (1995). "If any doubt exists, it must be resolved in favor of the constitutionality of a statute." State v. Starks, 51 Wis.2d 256, 259, 186 N.W.2d 245 (1971)(citing State ex rel. Thomson v. Giessel, 265 Wis. 558, 564, 61 N.W.2d 903 (1953)); see also Powell v. Pennsylvania, 127 U.S. 678, 684, 8 S.Ct. 992, 32 L.Ed. 253 (1888) ("Every possible presumption ... is in favor of the validity of a statute, and this continues until the contrary is shown beyond a rational doubt.") (quoting United Pac. R.R. Co. v. United States, 99 U.S. 700, 718, 25 L.Ed. 496, 504 (1878)).

¶13 In reviewing the constitutionality of a statute, a court may find only a portion of a particular statute unconstitutional, allowing the remaining valid portions of that statute to continue in effect:

It is well understood that part of a statute may be unconstitutional, and the remainder may still have effect, provided the two parts are distinct and separable and are not dependent upon each other. It is only where the void part of a statute was evidently designed as compensation for or an inducement to the otherwise valid portion, so that it must be presumed that the legislature would not have passed one portion without the other, that the whole statute must be held void.

Muench v. Public Serv. Comm'n, 261 Wis. 492, 515o, 55 N.W.2d 40 (1952)(quoting Quiggle

v. Herman, 131 Wis. 379, 382, 111 N.W. 479 (1907)).

¶14 This test for severability has been consistently applied in Wisconsin:

The factors to consider in deciding whether a statute should be severed from an invalid provision are the intent of the legislature and the viability of the severed portion standing alone. Chicago & North Western Transportation Co. v. Pedersen, 80 Wis.2d 566, 575, ...

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