Peter B., In Interest of

Decision Date05 April 1994
Docket NumberNos. 93-2654-L,93-2655-W,s. 93-2654-L
Citation516 N.W.2d 746,184 Wis.2d 57
Parties, 22 Media L. Rep. 1588 In the Interest of PETER B., a child under the age of 18. PETER B., Respondent-Petitioner, v. STATE of Wisconsin, Petitioner-Respondent. STATE of Wisconsin ex rel. PETER B., Petitioner, v. CIRCUIT COURT JUVENILE DIVISION FOR MILWAUKEE COUNTY, BRANCH 42, The Honorable David Hansher, Presiding and E. Michael McCann, District Attorney Milwaukee County, Respondents.
CourtWisconsin Court of Appeals

Before WEDEMEYER, P.J., and FINE and SCHUDSON, JJ.

SCHUDSON, Judge.

Peter B. petitioned this court for leave to appeal from a non-final order pursuant to RULE 809.50, STATS., or, in the alternative, for a supervisory writ under RULE 809.51, STATS., to order the Circuit Court of Milwaukee County, the Honorable David Hansher, circuit judge, not to authorize disclosure of Peter B.'s full name, address, date of birth, and photograph to local broadcast and print media. We dismiss Peter B.'s petition for leave to appeal pursuant to the Notice of Voluntary Dismissal Peter B. filed with this court. We deny Peter B.'s alternative petition for a writ of prohibition because we conclude that the juvenile court order for disclosure was a reasonable exercise of lawful authority under § 48.78(2)(a), STATS.

I. FACTUAL BACKGROUND

On March 17, 1993, Peter B., at that time thirteen and one-half years old, was adjudicated delinquent for possession of a dangerous weapon by a child, in violation of § 948.60(2), STATS. 1 The juvenile court ordered a period of probation supervision that included placement in a residential treatment center.

On July 30, 1993, Peter B.'s probation officer filed a "Petition For Extension & Revision of Dispositional Order And Change In Placement." The petition alleged that Peter B. was "no longer appropriate for placement with [the residential treatment center] as his behavior has been both verbally and physically aggressive toward Staff, he has been AWOL and is considered to be totally out of control." The petition recommended Peter B.'s change of placement to either the Ethan Allen School or the Lincoln Hills School, restrictive facilities under the Wisconsin Division of Youth Services. On August 25, 1993, when Peter B. did not appear in court for the hearing on the petition, the court commissioner issued a capias. 2

On September 20, 1993, when Peter B. failed to appear before Judge Hansher for a previously scheduled review of his progress on supervision, the juvenile court ordered another capias. A few hours later, his case was recalled when the court learned that Peter B. had been taken into custody the preceding weekend. The court then ordered Peter B. placed in secure detention pending the hearing on the petition, scheduled for October 5. On September 27, however, Peter B. absconded from "C-4 honors detention." According to the uncontroverted statement in the district attorney's brief, " 'C-4' is a less secure, though still locked, facility to which certain juveniles are transferred at the discretion of the secure detention facility staff to relieve overcrowding." 3

When Peter B. failed to appear for the October 5 hearing, the assistant district attorney asked "that Peter B.'s name be released to the press." He argued:

[I]t[']s my opinion based on the way he appeared to behave in court on the last date, the fact he ran away from C-4, and the fact he's been adjudicated delinquent on the possession of a dangerous weapon by a child charge that he presents a danger to the community.

Before the juvenile court, counsel for Peter B. initially did not explicitly challenge the court's authority to release his name. Rather, she emphasized that Peter B. had what she characterized as a relatively minor record, that the weapons charge "was something involving his family," 4 and that he probably was at home. She suggested, therefore, that the court "call the police or suggest to the police they should try there a little harder before you publish his name to the community."

After hearing further argument from the attorneys and a brief presentation from Peter B.'s probation officer, the court stated:

We're not looking at this issue in a vacuum. We're looking at the issue based upon his previous record which I agree is not extensive, but there's [sic] previous delinquencies, his finding of delinquency on a possession of a dangerous weapon by a child, his placement at the Residential Treatment Center where he didn't behave, caused disruptions, where he ran away, apprehended on a capias, placed in secure detention, and ran away again, escaped--he's an escapee, and you say it's not in his best interest to have his name disclosed? You're probably right. But the whole reason behind confidentiality for the juvenile is to protect him in future endeavors for him to get a job and save his family embarrassment. We follow that closely here. It's a good rule. But the reasons for nondisclosure basically have dissipated due to his conviction of this offense. And his escape or leaving the placement of the Residential Treatment Center, and his escape from C-4, I think the public needs to be protected from individuals like this.

....

I think what we have here is your invoking the cloak of confidentiality for the juvenile, but I think it's not an absolute privilege or an absolute right. I think it's conditional, and it's conditional, I find, based upon the reading of 48.01 which deals with the interests of the public. And I think there's a balancing test here where I balance the interest of the juvenile confidentiality verses [sic] the interest of the public in apprehending someone who I consider to be dangerous.

And I'll find under 48.34 he is a danger to the public and needs to be apprehended. And I find that the need for confidentiality is outweighed by the exigencies of the present circumstances.

I am going to order that the juvenile's name and the fact that he is wanted on an apprehension warrant as an escapee from C-4 and could be considered dangerous be disclosed to the print and broadcast media. I find it's in the best interest of the administration of the Juvenile Justice System and of the public. I feel that or find that the juvenile by running away from the [Residential Treatment Center], escaping from a secure detention facility--I don't want to say waivers, but brings in consideration the interest of the public under 48.01(2). And I find due to his own action he has brought upon himself the disclosure of his name and the fact that he is wanted on an apprehension warrant. The whole purpose of 48.01 is to rehabilitate the juvenile. We can't rehabilitate him unless we have him in court. And as the probation officer pointed out in her petition, the best interest of the juvenile is to place him in a secure detention facility. We can't do that or offer him any services unless we have him within our jurisdiction. And I know confidentiality is "the cornerstone of the Juvenile Court System." And this court has never disclosed juveniles' names and in fact have [sic] led the fight against the media releasing psychological reports or using psychological reports in their stories and court reports. But the stigma of releasing his name is far outweighed by the public interest in apprehending him immediately. And I find that this child by his own actions has brought about this court's action, and he has to bear full responsibility for this court order.

In making this decision, I want to emphasize I'm giving paramount consideration to the juvenile's interest, but even by doing that, the need for the juvenile's immediate apprehension by the Milwaukee Police Department or Milwaukee County Sheriff's Department due to his escape from C-4 and the fact there's an underlying serious charge clearly outweighs the juvenile's interest in confidentiality.

The juvenile court's final Order For Disclosure Of Confidential Information provided:

It is hereby ordered that the name, address, birthdate, and any photograph available to the Clerk of Court's Office, Children's Court Center, the Department of Social Services or any law enforcement agency of the above-named juvenile are to be disclosed to local broadcast and print media because the juvenile failed to appear in court on October 5, 1993, for an Extension and Change of Placement Hearing following disposition on a charge of Possession Of A Dangerous Weapon By A Child, and further is an escapee from "C-4 honors detention."

The juvenile court then stayed its order for 72 hours to give Peter B.'s counsel time to seek review of the order. She did so. The acting motions judge of this court, see WIS CT.APP. IOP VI (3) (Lawyer's Coop.1992), ordered a stay of the juvenile court order and further ordered the parties to submit briefs. Upon consideration of the briefs, this court vacated the earlier stay. Peter B.'s counsel then moved this court for re-imposition of the stay, and we denied that motion. The juvenile court order then was implemented, resulting in the publication of Peter B.'s name, photograph, and other information on television and in newspapers.

II. VOLUNTARY DISMISSAL

Following disclosure of Peter B.'s identity through the media, his counsel filed a Notice of Voluntary Dismissal with this court, seeking to dismiss and withdraw the petition for leave to appeal the non-final order and the petition for a supervisory writ, pursuant to RULE 809.18, STATS. RULE 809.18 provides:

An appellant may dismiss an appeal by filing a notice of dismissal. The notice must be filed in the court.... The dismissal of an appeal does not affect the status of a cross-appeal or the right of a respondent to file a cross-appeal.

The attorney general, on behalf of the juvenile court, does not oppose dismissal of Peter B.'s petition for leave to appeal. The attorney general, however, does oppose dismissal of the ...

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