N.E., In Interest of
| Decision Date | 31 January 1985 |
| Docket Number | No. 83-1872,83-1872 |
| Citation | 122 Wis.2d 198,361 N.W.2d 693 |
| Court | Wisconsin Supreme Court |
| Parties | In the Interest of N.E., a child under the age of eighteen. N.E., Appellant, v. WISCONSIN DEPARTMENT OF HEALTH AND SOCIAL SERVICES, Respondent. |
Margaret A. Maroney, Asst. State Public Defender, Milwaukee, argued, for appellant; Margaret A. Maroney and Donna L. Hintze, Asst. State Public Defenders, on brief.
Sally L. Wellman, Asst. Atty. Gen., argued, for respondent; Bronson C. La Follette, Atty. Gen., on brief.
N.E. appeals a dispositional order entered in a juvenile proceeding which adjudicated him delinquent. The sole issue on appeal is whether the court commissioner erred in accepting defense counsel's withdrawal of the juvenile's demand for a jury trial in the absence of a personal withdrawal, in writing or in open court on the record, from the juvenile. We hold that as a matter of judicial administration, a juvenile's statutory right to a jury trial, once demanded, must be withdrawn personally, by the juvenile, either in writing or on the record in open court. Because the court commissioner failed to do so, we reverse.
On March 31, 1983, a delinquency petition was filed against N.E., alleging that he was delinquent because he committed the misdemeanor crimes of battery, contrary to sec. 940.19(1), Stats., and retail theft, contrary to sec. 943.50(1) and (4)(a). Another delinquency petition was pending against N.E. at the time, and had been set for jury trial on April 4, 1983. The court removed this jury trial date from its calendar when the new charges were filed, and scheduled a pretrial conference to discuss both petitions. On April 6, 1983, an initial appearance was held before Judge Leander J. Foley, Jr. on the March 31st petition. The juvenile appeared with his attorney and informed the court that he was pleading not guilty. The court entered both a not guilty plea and a demand for jury trial, and set the matter for pretrial conference.
On April 13, 1983, the pretrial conference was held on the record before Court Commissioner Anthony J. Machi. The following discussion was held concerning the jury trial:
Later that day, the case was recalled. Defense counsel appeared without the juvenile present. The court commissioner inquired: "Counsel, you made a request to have this case recalled?" Defense counsel replied:
The court commissioner set the case for trial before Judge Michael T. Sullivan on May 6, 1983. N.E. was found guilty and adjudged delinquent. N.E. appealed to the court of appeals which in turn, certified the case to this court. We accepted certification. 120 Wis.2d 690, 357 N.W.2d 562 (1984).
The court of appeals, in its certification memo, framed the issue on appeal as whether a juvenile's waiver of his or her right to a jury trial must be made personally and on the record. However, the facts of this case do not present precisely that question. In the present case, a jury demand was entered, which counsel for the juvenile subsequently withdrew after the pretrial hearing. Section 48.30(2), Stats., and sec. 48.31(2) provide that the right to a jury trial is waived if an affirmative demand is not made by the end of the plea hearing. Under this statutory scheme, inaction results in waiver while affirmative action preserves the jury right. Therefore, having taken the affirmative action required by sec. 48.30(2) and sec. 48.31(1), N.E. preserved his statutory right to a jury trial. The correct question on appeal, therefore, is whether the court commissioner erred in accepting defense counsel's withdrawal of the juvenile's demand for a jury trial in the absence of the juvenile's personal withdrawal, in writing or on the record in open court. We hold that a juvenile's right to a jury trial is neither a federal nor a state constitutional right and is strictly a statutory, non-fundamental right. Nonetheless, we hold, in the interest of judicial administration, that once a juvenile invokes his or her statutory right to a jury trial, this right must be withdrawn personally by the juvenile, either in writing or on the record in open court. The court must then determine that the juvenile's withdrawal was knowing and voluntary.
The parties are in agreement that there is no federal constitutional right to a jury trial in the adjudicative phase of a juvenile delinquency proceeding. This is the clear holding of the United States Supreme Court in McKeiver v. Pennsylvania, 403 U.S. 528, 91 S.Ct. 1976, 29 L.Ed.2d 647 (1971): "Despite all these disappointments, all these failures, [of the juvenile court concept] and all these shortcomings, we conclude that trial by jury in the juvenile court's adjudicative stage is not a constitutional requirement." Id. at 545, 91 S.Ct. at 1986.
N.E. argues that in Wisconsin a juvenile has a constitutional right to a jury trial in the adjudicatory phase of a juvenile delinquency proceeding, guaranteed through Art. I., sec. 5 and the due process clause of the Wisconsin Constitution. From this, N.E. argues that the procedures required for the waiver of an adult defendant's constitutional right to a jury trial must be applied to the juvenile's withdrawal of his or her right to a jury trial. Thus, according to N.E., the right to a jury trial may only be withdrawn by the juvenile's personal, knowing and voluntary withdrawal, which must appear on the record. N.E. further argues that regardless of whether the juvenile's right to a jury trial is a constitutional or statutory right, it is a fundamental one, and that therefore the personal, knowing and voluntary waiver requirements must be applied. It must be noted that neither the Wisconsin Department of Health and Social Services, nor N.E. distinguish between waiver and withdrawal of the jury trial right. We conclude that their arguments were intended to apply to the issue of withdrawal of the right to a jury trial, once demanded, since the facts presented to this court by the parties deal exclusively with the issue of withdrawal.
We find no merit in N.E.'s argument that the juvenile is guaranteed a right to a jury trial in the adjudicatory phase of a juvenile delinquency proceeding through Art. I., sec. 5 of the Wisconsin Constitution. This section is set forth below. 1 The right preserved in Art. I., sec. 5 of the Wisconsin Constitution is simply the right as it existed at the time of the adoption of constitution in 1848. Upper Lakes Shipping v. Seafarers' I. Union, 23 Wis.2d 494, 503, 128 N.W.2d 73 (1964). Juvenile delinquency proceedings did not exist at the time the constitution was adopted and thus, no right to a jury trial in delinquency proceedings could have been preserved. See generally Larson, Development of the law in Wisconsin in the Area of Juvenile Delinquency, 59 MARQ.L.REV. 251 (1976). Accord, In re Fucini, 44 Ill.2d 305, 255 N.E.2d 380, 382 (1970), app. dismissed, 403 U.S. 925, 91 S.Ct. 2242, 29 L.Ed.2d 704 (1971); Commonwealth v. Johnson, 211 Pa.Super. 62, 234 A.2d 9, 11-12 (1967). See also In Interest of Johnson, 257 N.W.2d 47, 51-54 (Iowa 1977) (J. McCormick concurring specially); Contra In the Matter of Javier Cabral A., 2nd Crim. No. 43708, California Court of Appeals, Second Appellate District, Division Seven (Slip opinion, August 31, 1984).
We rely on our prior holdings in State v. Scholl, 167 Wis. 504, 167 N.W. 830 (1918), and Wisconsin Industrial School for Girls v. Clark County, 103 Wis. 651, 79 N.W. 422 (1899), to reject N.E.'s alternate argument that the juvenile is guaranteed a due process right to a jury trial in delinquency proceedings. Accord McKeiver; State v. Lawley, 91 Wash.2d 654, 591 P.2d 772, 773 (1979); In Interest of Johnson at 49-50; State v. Gleason, 404 A.2d 573, 583-85 (Me.1979); In re Fucini, 255 N.E.2d at 381-82; In re McCloud, 110 R.I. 431, 293 A.2d 512, 514-16 (1972). To the contrary are RLR v. State, 487 P.2d 27 (Alaska 1971); Peyton v. Nord, 78 N.M. 717, 437 P.2d 716 (1968); Arwood v. State, 62 Tenn.App. 453, 463 S.W.2d 943 (1971).
It is clear, as the parties agree, that a juvenile does possess a statutory right to a jury trial in the adjudicatory phase of a delinquency proceeding. Section 48.30(2), Stats. provides in part:
"(2) At the commencement of the hearing under this section the child and the parent, guardian or legal custodian shall be advised of their rights as specified in s. 48.243 and shall be informed that a request for a jury trial or for a substitution of judge must be made before the end of the plea hearing or be waived...."
Section 48.31(2), Stats., provides in part:
These sections provide the juvenile with a right to a jury trial in the adjudicatory phase of a delinquency proceeding if that right is demanded before the end of the plea hearing. By providing a jury trial solely upon the juvenile's affirmative request, rather than upon his or her nonaction, the legislature achieved a proper...
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