P.A.K., In Interest of

• Decision Date: 29 June 1984
• Docket Number: No. 83-176,83-176
• Citation: 119 Wis.2d 871,350 N.W.2d 677
• Court: Wisconsin Supreme Court
• Parties: In the Interest of P.A.K., a person under the age of 18: P.A.K., Appellant, v. STATE of Wisconsin, Respondent-Petitioner.

Page 677

350 N.W.2d 677

119 Wis.2d 871

In the Interest of P.A.K., a person under the age of 18 P.A.K., Appellant, v. STATE of Wisconsin, Respondent-Petitioner.

No. 83-176.

Supreme Court of Wisconsin.

Argued March 26, 1984.

Decided June 29, 1984.

Sally L. Wellman, Asst. Atty. Gen. (argued), with whom on the briefs was Bronson C. La Follette, Atty. Gen., for respondent-petitioner.

Stephen P. Hurley and Sally J. March (argued), Madison, on brief, for appellant.

WILLIAM A. BABLITCH, Justice.

The issue for review is whether, in a contested juvenile waiver hearing, the juvenile court may find prosecutive merit on the basis of the delinquency and waiver petitions alone. The state appeals a decision holding that the state must present testimony and evidence in addition to the delinquency and waiver petitions to establish prosecutive merit whenever the juvenile contests the issue of prosecutive merit. We hold that the provisions of the Children's Code, ch. 48, Stats., do not require the state to present testimony and evidence in addition to the petitions on the issue of prosecutive merit in a contested juvenile waiver hearing, and that the court may rely on the delinquency and waiver petitions alone to determine that issue. We therefore reverse the decision of the court of appeals.

On December 22, 1982, P.A.K. was taken into custody following a high speed chase by police officers. P.A.K. was seventeen years old at that time. The state filed a delinquency petition on December 22. The petition alleged that P.A.K. feloniously endangered another person's safety by conduct imminently dangerous and evincing a depraved mind, regardless of human life, contrary to sec. 941.30, Stats. On December 23, the state filed a petition requesting that the juvenile court waive jurisdiction over the matter.

The juvenile court held a waiver hearing on January 21, 1983. During the hearing, the state asked the court to make a finding under sec. 48.18(4), Stats., that the matter had prosecutive merit based solely on the facts alleged in the delinquency petition. Section 48.18(4) provides: "The judge shall determine whether the matter has prosecutive merit before proceeding to determine if it should waive its jurisdiction." The state offered no testimony or additional evidence on that issue. Although P.A.K.'s attorney indicated that he was contesting the issue of prosecutive merit, he offered no testimony or evidence disputing the allegations in the delinquency petition, nor did he contend that the petition contained unreliable evidence or failed to establish probable cause. He instead argued that the court could not make a finding of prosecutive merit on the basis of the delinquency petition alone, and that the state was required to present testimony and evidence in addition to the delinquency and waiver petitions to establish prosecutive merit.

The juvenile court held that it could determine whether the matter had prosecutive merit based solely on the facts alleged in the delinquency petition, and it found prosecutive merit on that basis. After making findings concerning the criteria governing waiver specified in sec. 48.18(5), Stats., the court ordered that its jurisdiction be waived.

The court of appeals granted P.A.K. leave to appeal the nonfinal waiver order of the juvenile court. The court of appeals reversed the order, 114 Wis.2d 596, 338 N.W.2d 528, holding that the juvenile court erred in relying solely on the delinquency petition to find prosecutive merit. The state then filed a petition for review with this court, which we granted.

In In Interest of T.R.B., 109 Wis.2d 179, 325 N.W.2d 329 (1982), we noted that secs. 48.18(4), Stats., and 48.18(5), 1979, when read with sec. 48.18(1), 1979-80, set forth a two-stage juvenile waiver hearing. Sections 48.18(1), 48.18(4) and 48.18(5), 1981-82, are the same as secs. 48.18(1), 48.18(4) and 48.18(5), 1979-80, which were applicable when T.R.B. was decided. The first stage involves the juvenile court's determination whether the "jurisdictional factors" exist that would allow it to then consider the criteria for waiver set forth in sec. 48.18(5). The "jurisdictional factors" are whether the juvenile was sixteen years of age or older on the date of the alleged offense, sec. 48.18(1), and whether the state's allegation that the juvenile has violated a state criminal law has prosecutive merit, sec. 48.18(4). The second stage of the waiver hearing involves the juvenile court's consideration of the criteria for waiver in sec. 48.18(5), and its determination whether to waive jurisdiction. 109 Wis.2d at 185, 325 N.W.2d 329.

In T.R.B., we also discussed the meaning of prosecutive merit and the basis upon which the juvenile court may make a finding of prosecutive merit under sec. 48.18(4), Stats., when the juvenile has not contested the issue of prosecutive merit. We analogized a determination of prosecutive merit under sec. 48.18(4), to a determination of probable cause in a preliminary examination and held that prosecutive merit is the same degree of probable cause required to bind over an adult after a preliminary examination:

"... the juvenile court, before considering the waiver criteria, must satisfy itself that the record establishes to a reasonable probability that the violation of the criminal law alleged has been committed and that the juvenile has probably committed it. This is the degree of probable cause required to bind over an adult for criminal trial." 109 Wis.2d at 192, 325 N.W.2d 329.

In addition, we held that if waiver is not contested, the juvenile court may determine whether the matter has prosecutive merit under sec. 48.18(4), Stats., solely on the basis of the delinquency and waiver petitions without taking testimony or considering evidence other than the petitions. Because the juvenile in T.R.B. did not contest the issue of prosecutive merit, we specifically did not reach the question of whether the state must submit relevant testimony or evidence other than the petitions if the issue of prosecutive merit is contested. See 109 Wis.2d at 194, 325 N.W.2d 329. That issue is now before us.

A determination whether a juvenile court may rely solely on the delinquency and waiver petitions to find prosecutive merit when the juvenile contests the issue of prosecutive merit involves an interpretation of secs. 48.18(4), Stats., and 48.18(5). Those are questions of law, which we may independently decide without deferring to the circuit court's conclusions. See Engineers & Scientists v. Milwaukee, 38 Wis.2d 550, 554, 157 N.W.2d 572 (1968).

The state argues that the holding of T.R.B. should apply even when the juvenile contests the issue of prosecutive merit. As we recognized in T.R.B., neither the language nor legislative history of sec. 48.18(4), Stats., indicates that when prosecutive merit is uncontested, the district attorney is required to present relevant testimony or that the juvenile court is required to consider relevant testimony and evidence prior to determining under that provision whether the matter has prosecutive merit. Similarly, we find nothing in the language or history of sec. 48.18(4) to indicate that when prosecutive merit is contested, the legislature intended to require the state to present, and the juvenile court to consider, testimony and evidence in addition to the petitions prior to determining whether the matter has prosecutive merit under sec. 48.18(4). Regardless of whether the issue of prosecutive merit is contested or uncontested, the juvenile court must make the same determination in both cases; namely, whether the matter has prosecutive merit. Thus, the fact that the issue of prosecutive merit may be contested does not change the nature of the prosecutive merit determination. We therefore conclude that when the issue of prosecutive merit is contested, there is no requirement in sec. 48.18(4) that the state present, or that the juvenile court consider, testimony or evidence in addition to the petitions prior to determining that the matter has prosecutive merit.

The state also argues that the language of sec. 48.18(5), Stats., and the history of that statute indicate that the legislature did not intend to require the state to present evidence or testimony to establish prosecutive merit. P.A.K. argues, however, that under the language of sec. 48.18(5), Stats., cited in full below ¹, the legislature intended a waiver hearing to be a full evidentiary hearing. He asserts that at this hearing, the state is required to present witness testimony and evidence on all the criteria for waiver specified in sec. 48.18(5), one of which is prosecutive merit. See sec. 48.18(5)(b). P.A.K. contends that it would be anomalous to conclude that prosecutive merit could be established solely from the delinquency and waiver petitions when sec. 48.18(5) allegedly requires the state to present testimony and other relevant evidence as to all waiver criteria. Thus, even if sec. 48.18(4) does not expressly require a full evidentiary hearing on the issue of prosecutive merit, P.A.K. argues that because of the language of sec. 48.18(5), once the issue of prosecutive merit is contested, the juvenile court must hold such a hearing before determining whether to waive its jurisdiction. We disagree with P.A.K.'s interpretation of sec. 48.18(5) for a number of reasons.

The purpose of statutory interpretation is to ascertain and give effect to the legislature's intent. County of Columbia v. Bylewski, 94 Wis.2d 153, 164, 288 N.W.2d 129 (1980). In determining legislative intent, first resort is to the language of the statute itself. If the meaning of the statute is clear on its face, this court will not look outside the statute in applying it. Wis. Elec. Power Co. v. Public Service Comm., 110 Wis.2d 530, 534, 329 N.W.2d 178 (1983). If the statutory language is ambiguous, this court attempts to ascertain the legislature's intent by the scope, history, context, subject...